Justices Consider Shield for Pre-Arrest Silence

     WASHINGTON (CN) - A convicted murderer persuaded the U.S. Supreme Court to decide whether prosecutors improperly used his pre-arrest silence as evidence of guilt.
     Genovevo Salinas evaded arrest for 15 years after Houston prosecutors charged him with a December 1992 double murder.
     When police had identified him as a suspect, Salinas had voluntarily sat for questioning. He became quiet when police asked him, after an hour of cooperation, whether shotgun shells found at the crime scene would match a shotgun found at his home. The ballistics analysis was a match, and police also found someone who claimed to have witnessed Salinas admit to the murders.
     After an initial mistrial, Texas sought to show jurors how questions about the casings made Salinas go quiet in the interrogation room.
     But Salinas argued that the silence merely represented Salinas invoking his Fifth Amendment right though police had not charged him or read him read his rights.
     The trial court admitted the evidence, and Salinas went away for 20 to life. The 14th Court of Appeals agreed that the silence was admissible, and the Court of Criminal Appeals also affirmed in April 2012.
     "The Supreme Court has held that a defendant's Fifth Amendment right against compelled self-incrimination is violated if the state is allowed to impeach the defendant's testimony by using his post-arrest, post-Miranda silence," the opinion states. "The state does not violate a defendant's Fifth Amendment rights, however, by cross-examining a defendant as to post-arrest, pre-Miranda silence when a defendant chooses to testify. Furthermore, the Supreme Court has held that pre-arrest, pre-Miranda silence can be used to impeach a defendant who testifies."
     The panel noted that this issue has never gone to the U.S. Supreme Court, and that there is a split among lower courts that have contemplated similar cases.
     "The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination," the court found. "In pre-arrest, pre-Miranda circumstances, a suspect's interaction with police officers is not compelled. Thus, the Fifth Amendment right against compulsory self-incrimination is 'simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak.'"
     Per its custom, the Supreme Court did not comment on its decision to take up the case.