According to the Supreme Court of the United States, refusing to answer questions is not an invocation of your right to silence under The Fifth Amendment and if you refuse to answer questions and haven’t been mirandized yet, your Fifth Amendment rights don’t attach, and the silence can be used substantively against you.
Here’s what that means. Salinas was on trial for murder. The police brought Salinas in for interrogation, interrogated him for about an hour, and then asked Mr. Salinas if his shotgun “would match the shells recovered at the scene of the murder.”
Salinas was silent.
The Prosecutor asked the jury in closing argument to ponder why. “Why didn’t he say anything.” “He must’ve had something to hide, right?” Because of this, Salinas was convicted of murder.
Here is the problem with the decision of the Supreme Court in Salinas vs. Texas. If you invoke your rights, the invocation of your rights shouldn’t be held against you. That is still the law of the United States. However, if you’re going to invoke your Fifth Amendment right to silence, you need to say so. Because your silence speaks volumes. And your silence could mean your guilt.
So, when a question is asked, and answering that question could cause you to inculpate yourself, exercise your right to not do so and your right to an attorney by saying “I’m invoking my right to counsel.” Better yet, if you start talking to the police and it seems like the discussion is more than just “a polite inquiry” you need to ask two questions.
“1. Am I being detained?
2. Can I have a lawyer?”
Follow me at @DavidTDorer, listen to the David Dorer Show and Talking Law