Suspects who are not in custody, and thus not entitled to Miranda warnings, can have their silence used against them unless they expressly invoke their Fifth Amendment right to remain silent, the U.S. Supreme Court has held.
In a 5-4 decision handed down Monday, the Court in Salinas v. Texas determined that a suspect's silence after being asked a question during a voluntary police interview can be used against him during his criminal trial, reports the Associated Press.
Though Miranda shields defendants from the dangers of police interrogation, a suspect's protections are weaker when he is not in custody.
Not In Custody, No Miranda
In Salinas, the Court noted that a suspect does not have to be read his Miranda rights when he is not in custody.
In situations prior to custody and questioning by police, there is much less danger of police coercion, so a suspect's pre-Miranda silence is not automatically protected.
That means a suspect who volunteers to answer questions, then stops and decides to remain silent, must invoke his Fifth Amendment right to remain silent; if not, that silence can potentially be used against him.
There are no magic words that a suspect needs to use in order to invoke his right to silence, but something needs to be said.
In Salinas, the defendant freely answered police questions about a murder investigation, but then fell silent when asked if his shotgun would match shells found at the murder scene, USA Today reports.
Without more than remaining mute, the Supreme Court plurality found that Salinas' silence was ambiguous, and that he could have been thinking of a way to lie just as easily as he may have been intending to invoke his rights.
Silence Used in Court
Generally, a defendant cannot have his silence as a trial witness used against him, but this does not apply fully to his choices to remain silent before trial.
A prosecutor, under Salinas, is free to let the jury consider the fact that, prior to arrest or custody, the defendant answered some questions but chose to remain silent for others.
Remember, if you are asked to come in for police questioning, it isn't an arrest, and no Miranda warnings are needed to have any voluntary statements, or even silences, admitted as evidence against you. For legal advice about what to do in your specific situation, you may want to consult an experienced criminal defense lawyer near you.