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Supreme Court: For right to remain silent, a suspect must speak

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Salinas readily answered all of the detectives’ questions – except one. After nearly an hour of questions and answers, one of the detectives asked him if the shotgun police had recovered from the Salinas house earlier that day would match the shells recovered at the scene of the murder.

Salinas fell silent. He did not respond. One of the officers would later testify that Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.”

The detective asked some additional questions that Salinas answered. The only question Salinas declined to answer related to whether the shells found at the murder scene would match Salinas’ shotgun.

At his trial, the prosecutor presented testimony from the investigator about how Salinas had answered many questions by the police – but refused to answer one. The prosecutor told the jury in his closing that Salinas’ silence was evidence of the defendant’s guilt.

Salinas was convicted of the double killing and sentenced to 20 years in prison.

On appeal, his lawyer challenged the use of Salinas’ silence as evidence against him. The lawyer argued that it violated the Fifth Amendment privilege against self incrimination.

The Texas Court of Criminal Appeals disagreed and upheld the conviction.

In affirming the Texas court, the Supreme Court said on Monday that Salinas’ Fifth Amendment claim “fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s questions.”

In effect, the court said Salinas could not take advantage of his right to remain silent by merely remaining silent.

In a dissent, Justice Stephen Breyer and his three colleagues offered a sharply different view of the constitutional protections involved. 

“The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming a witness against himself,” Justice Breyer wrote.

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