Right Against Self-Incrimination Before Arrest

This wikilog article is a draft, it was not published yet.

by: Ryan • January 11, 2013 • no comments

There is a pending petition for cert with SCOTUS with the following issue:

Salinas v. Texas

Issue: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

From the petition:

This Court, however, has never decided “whether or under what circumstances prearrest silence” in the face of law :enforcement questioning “may be protected by the Fifth Amendment.” Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980) (emphasis added). (This issue turns solely on the Fifth Amendment, not due process, because it does not involve any governmental promise other than the one contained in the Self-Incrimination Clause itself.) As the Texas Court of Criminal Appeals noted in this case, “the courts that have weighed in on the issue” – specifically, whether the Fifth Amendment prohibits the prosecution from using such silence as substantive evidence of guilt – “are split” and have frequently noted this “split and the lack of guidance from the Supreme Court.” Pet. App. 4a-5a; see also id. 20a-22a & n.2; State v. Kulzer, 979 A.2d 1031, 269-71 (Vt. 2009) (describing the split as of a few years ago).

2. A majority of the federal appellate and state high courts to address the issue – ten in all – have held that the Fifth :Amendment prohibits the prosecutor from commenting, as part of its case-in chief, on a defendant’s refusal to answer law enforcement questioning before he was arrested or Mirandized.

So a general question: why highlight and quote a brief that is unlikely -- statistically -- to be granted cert? Because (1) it might help you recognize an issue you hadn't really thought of before, and (2) the federal case law can still be pretty persuasive in state court.