In 2013, the Supreme Court in the
case of Salinas v. Texas, 133 S.Ct. 2174 (2013), decided that the Fifth Amendment
did apply to pre-arrest, pre-charge questioning of someone suspected of
committing a crime. The court further stated that if someone being investigated
of a crime must specifically say that they are exercising their Fifth Amendment
right to remain silent. Just sitting there silently is no longer enough. Sitting
there silently or answering some questions while not answering others can now
be used against you as evidence of your guilt.
In the Salinas case, two people were shot and
killed. The police recovered shotgun shell casings where the killings occurred.
Salinas was
suspected by the police of being involved and, when approached by the police, he
voluntarily agreed to go with the police to the police station and answer
questions.
During the questioning, Salinas was not under
arrest and was free to leave, which, under the law, meant that Miranda rights
were not required to be given. Salinas
answered many of the officer’s questions but when asked if the shotgun shells
found at the scene would match his shotgun, he stayed silent. He then went on
to answer additional questions. His silence in response to the shotgun shell
question was used against him at the trial in which he was convicted. The
Supreme Court said this was acceptable.
So, what should you do to make
sure you are protected in the face of police questioning? Fort Lauderdale CriminalAttorney Gary Cole advises that people should always refuse to answer police questions
without an attorney being present. If police have enough information to arrest
you, they will do it without any statement from you. If you are approached by
the police, let them know that you are refusing to answer questions based on
your Fifth Amendment privilege. No
additional words or needed. Many officers will try to get you to talk by saying
something to the effect that if you did not do anything wrong, you should
answer their questions. Don’t fall for
that trap.
Once you say the words, “I am
refusing to answer questions based on my Fifth Amendment privilege”, you are
under no obligation to provide any further explanation. And, once you use those
words, “I am refusing to answer questions based on my Fifth Amendment privilege”
ask if you are free to leave. If so, leave immediately and contact FortLauderdale Criminal Attorney Gary Cole.
This website is for informational
purposes only and does not constitute legal advice. The information is not
provided in the course of an attorney-client relationship and is not intended
to substitute for legal advice from an attorney licensed in your jurisdiction.
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