Defendant’s Silence at Trial

The prosecutor may lawfully use a defendant’s silence in response to questions against them if he was not in custody at the time of questioning. Unless the defendant invokes his right to remain silent or asks for counsel, his silence might become evidence in court.

Fifth Amendment Right to Remain Silent

In Salinas v Texas, a recent United States Supreme Court case, the court decided that the use at trial of the defendant’s silence during an interview when he was not in custody did not violate the Fifth Amendment. In this case, the defendant was not in custody and had not been given his Miranda warnings but voluntarily answered a police officer’s questions about a murder. The defendant did not answer questions when asked if his shotgun would match the shells recovered at the murder scene. He instead looked at the ground, shuffled his feet, bit his lip, and otherwise appeared nervous. When the officer asked additional questions, the defendant answered them.

At trial, the prosecutor argued that the defendant’s reaction to the officer’s questions suggested he was guilty of the murder. The defendant was convicted. On appeal, the defendant argued that the use of his silence was a violation of the Fifth Amendment, and the trial judge should have granted his Motion to Suppress.

The Court concluded that the defendant’s claim failed, and his silence could be used against him at trial because he did not expressly invoke the privilege in response to the officer’s question. No exception applied to excuse his failure to invoke the privilege.

Fifth Amendment

Under the Fifth Amendment to the United States Constitution, the government cannot use the defendant’s silence against them at trial. The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Constitution of the United States, Article 1, Section 8, Clause 5.

Among the Fifth Amendment protections are the defendant’s right to remain silent when questioned by the police while in custody and the right not to testify at trial. In either case, a jury cannot consider a defendant’s silence as evidence of guilt.

Defense Attorney’s Experienced with Motions to Suppress Evidence

The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have had decades of experience practicing exclusively criminal law. The criminal law can change, sometimes daily. When you, or someone you love, are charged with a felony or misdemeanor and facing possible incarceration, it is essential that you have a legal team that is highly knowledgeable about constitutional law. Only the most experienced, respected attorneys can give you the best possible defense and fight to prevent the defendant’s silence from being used as evidence at trial.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.