5th Amendment Update: Why silence is no longer golden

by Sean Maloney, Esq.

Nearly 70 years ago, Supreme Court Justice Robert Jackson wrote in Watts v. Indiana: "[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."

I have shared Justice Jackson's wisdom over the course of my legal career with anyone who would listen. As a Criminal Defense Attorney, I consider Justice Jackson's statement to be the single most important advice I have given. Time and time again, I have told clients to just “shut up and say nothing.”

Now, after the United States Supreme Court's recent decision in Salinas v. Texas, this once-trustworthy advice could be equivalent to malpractice. Protecting your rights is no longer as simple as just shutting up. Let me explain why.

The 2 Kinds of Police Interrogation

You might think an interrogation is an interrogation. But in reality, there are two kinds: custodial and noncustodial.

Custodial Interrogation - A custodial interrogation is an interrogation of a person in custody who is reasonably suspected of being directly involved in or responsible for an offense. The person being interrogated is not free to leave police custody. Once a person is in police custody, the suspect must be read his Miranda rights if the police want to question him and to use the answers as evidence at trial.

Non Custodial Interrogation (also called an interview) - A non custodial interrogation is the gathering of information by police from a person that is not yet officially considered a suspect for the offense being investigated. An interviewee is not in police custody and is free to leave at any time. A non custodial interview does not require the police to read the suspect his Miranda rights in order to use statements as evidence at trial.

In other words, the police will warn you about your rights when you're in custody, and you have to specifically wave your rights before they can use your statements against you. However, if you're not officially in custody, they can just start asking you questions with no warning and anything you say can still be used against you.

The problem is, how do you know whether you're involved in a custodial or noncustodial interrogation? When you've just shot someone and a police officer is asking you questions, even a friendly noncustodial “interview” can seem like an official custodial interrogation.

As if this isn't bad enough, if you're on the wrong side of an interrogation, now the Salinas ruling confirms that not only are police officers NOT required to give you a Miranda warning for a non custodial interrogation, just standing there and remaining silent without specifically invoking your 5th Amendment right in a custodial interrogation can be used against you.

The whole purpose of the Miranda law was to protect you from incriminating yourself. But now the burden of protecting your rights has shifted from the police to YOU.

You are expected to know that you have a right against self-incrimination, and unless you specifically and clearly invoke this right, anything you say or do not say, including your mannerisms at the time you stop talking, can be used against you.

As the United States Supreme Court stated, "Before [we can] rely on the privileges against self-incrimination ...[we are] required to [verbally] invoke it" at the time we exercise it.

Non Custodial Interrogation Techniques

You're probably familiar with custodial interrogations. You see them in TV crime dramas all the time. And because an officer gives you a Miranda warning, it's very clear what's going on.

But to make sure you know what a non custodial interview is like, let's imagine I have just shot someone in self defense. Here's how the friendly, non custodial “interview” with a police officer might begin:

“Sean, do you mind if we ask you a few questions?”

“Could you meet us at the station to help us out, Sean?”

“Sean, could you tell us about what happened last night at the party across the street?”

Or the police officer might be a little more forceful and use pressure to get me talking:

"Sean, as part of my investigation, I am going to ask you some questions to find out the truth about what just happened. You want to be truthful with me don't you? Now, I want to make clear, if you refuse to answer my questions, at trial the prosecutor will be able to stand in front of the jury and tell them 'an innocent man would have answered my questions, but you refused.' So I recommend that you cooperate and answer my questions."

This puts you in a very difficult situation. You would have to be a Fifth Amendment expert to understand whether you're in a custodial or non custodial interrogation or that you are not required to say anything. And you have to possess the willpower and composure (in what may be the most stressful moment of your life) to refuse to answer a police officer's questions.

How to End a Police Interrogation

Technically, how you end a police interrogation depends on which kind of interrogation it is.

A non custodial interrogation, such as the example above, can be ended by simply walking away.

A custodial interrogation can be ended with a clear request for an attorney or a clear request to remain silent.

HOWEVER, if you've been involved in a self defense shooting, this is not the time for technicalities and fine points of law. Given that even experts might not agree on whether you're facing a custodial or non custodial interrogation, and given the recent Salinas ruling, you should immediately and expressly invoke your right against self-incrimination if law enforcement tries to question you.

This isn't a game of words, so there's no formula for what you have to say. Anything you say that expressly invokes your constitutional right against self-incrimination will work:

"Officer, I invoke my Constitutional Right against self-incrimination.”

“Detective, I invoke my 5th Amendment Rights.”

“I refuse to answer any questions and exercise my constitutional right to remain silent.”

“I assure you that I am willing to cooperate, but not until I have had time to compose myself and meet with my Attorney.”

“I evoke my constitutional rights to remain silent. I do so on behalf of my Children. And I do not consent to any warrantless searches.”

Don't concern yourself with what kind of interrogation you're in. Don't worry about whether Salinas applies in your particular situation. Just invoke your 5th Amendment right immediately, verbally, and clearly.

I REPEAT: If you are being questioned by police in a post shooting situation, no matter how friendly or hostile it may seem, invoke your 5th Amendment Constitutional right against self-incrimination. If you do, the prosecutor cannot use your statements against you and cannot argue that "an innocent person would talk," when you refuse to.