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Can silence be used by prosecutors? Supreme Court to decide

Miranda warnings are a critical aspect of the criminal process. Based on the landmark Supreme Court case Miranda v. Arizona, the warning is essentially a reminder that law enforcement is authorized to use statements and information provided by the accused against him or her in court. It is also a warning that the accused has no obligation to answer questions against their will, and that they have a constitutional right to remain silent (so that they do not incriminate themselves) if they are in custody.

However, in many cases prosecutors have actually used a person's silence evidence of one's guilt, especially when an accused refuses to answer questions while not in custody. Such was the case in Salinas v. Texas, where a man (Genovevo Salinas) who was found guilty of murdering two Houston men. Salinas had cooperated with police in their investigation. He allowed them to search his home and even went to the police station to participate in a non-custodial interview. He answered many of their questions... except whether the shotgun recovered from his home would match ballistics tests to match the weapon used in the murders.

At trial, prosecutors highlighted the fact that he did not want to answer that question, and that an innocent person would exclaim that he didn't do it. Instead, they explained how Salinas' body language showed how he was evasive, uneasy and exhibited signs of guilt. The jury convicted Salinas and he was sentenced to 20 years in state prison.

Salinas appealed, arguing that prosecutors should not comment on a defendant's silence at trial, and that the use of his silence during pre-arrest questioning violated his Fifth Amendment rights. Both the Texas Court of Appeals and the Texas Court of Criminal Appeals (the state's supreme court for criminal matters) found no such violation because a suspect is not compelled to speak with police absent an arrest.

The case will be argued before the U.S. Supreme Court on April 17th.

Source: ABA Journal.com, Court weighs whether a prosecutor can use defendant's refusal to answer a question, April 1, 2013

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Gregory R. Gifford
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    "Gregory R. Gifford, a partner at the Lansdale law firm of Rubin, Glickman, Steinberg and Gifford, P.C., was elected Vice President of the Montgomery Bar Association on January 13, 2017. Mr. Gifford is a past Director of the Association and has also served as its Treasurer and Secretary"Read more...

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