Massachusetts DUI Attorney Blog

Massachusetts criminal defense lawyers will receive an answer to the question as to whether Miranda rights apply prior to a formal arrest. The cases that raises this issue
Salinas v. Texas was recently grant certiorari by the United States Supreme Court. The filings of the Salinas case cane be found on the Scotus Blog.

The issue in the case is whether the Fifth Amendment protects a defendant who refused to respond to police questioning before being arrested or read his Miranda rights.

The defendant voluntarily accompanied authorities to a police station for questioning in regards to a double-homicide investigation. After about an hour of questioning, the defendant stopped answering questions and remained silent.

He was charged with murder and at trial the State sought to introduce the defendant's silence in response to police questioning. The defendant objected to this evidence, claiming that the Fifth Amendment privilege should exclude the evidence regardless of the fact that he was not in police custody at the time of questioning. The Court allowed the evidence in and the defendant was convicted of murder.

The Court of Criminal Appeals of Texas held that the pre-arrest, pre-Miranda silence was admissible because it was not compelled, which means that if a person is not yet arrested or read his or her Miranda rights then the interaction is voluntary. Thus, the Fifth Amendment privilege is not triggered.

While the Court of Criminal Appeals of Texas decided that the defendant could not assert his Fifth Amendment privilege, not all federal courts agree with this reasoning. In Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), the Court held that the Fifth Amendment privilege extends beyond a person in custody or a person who has been charged with a crime, and applies to a suspect who is questioned during an investigation.

A case that may help the defendant before the United States Supreme Court is
Kastigar v. U.S., 406 U.S. 441 (1972), where the Court held that the Fifth Amendment privilege can "be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." If the Supreme Court maintains a scope of liberal application as it did in Kastigar, then there is a possibility that the holding in Salinas will include pre-arrest and pre-Miranda silence as part of the Fifth Amendment privilege. Regardless of whether the Supreme Court finds for the defendant or the State, the decision will provide constitutional clarity for the lower courts.

As a criminal defense lawyer in Massachusetts, I would expect the court to find that pre-arrest silence is included within the scope of the Fifth Amendment and that it should have been excluded in the Salinas trial.