Neal Davis: How Salinas Changed the Law of Self Incrimination

Source: National Association of Criminal Defense Lawyers™
Author: Neal Davis and Dick DeGuerin
Date: January-February 2014
Photo Credit: National Association of Criminal Defense Lawyers

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Silence Is No Longer Golden: How Lawyers Must Now Advise Suspects in Light of Salinas v. Texas

Almost 70 years ago, Justice Robert Jackson made the following observation 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.” But after the Supreme Court’s recent decision in Salinas v. Texas, Justice Jackson’s once-stalwart advice could be tantamount to malpractice if police question a suspect in a noncustodial context. Silence is no longer golden.

Under the Supreme Court’s Alice in Wonderland approach to the Self-Incrimination Clause, witnesses cannot exercise their right to remain silent in a noncustodial context unless they speak up. In a 5-4 decision, Salinas held that a witness, whom police subject to noncustodial questioning without giving the Miranda warning, cannot rely on the Fifth Amendment unless he expressly invokes it. That is, if a witness

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