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When You Don’t Have The Right To Remain Silent

Anyone who’s ever watched a crime show knows that the right to remain silent is a fundamental constitutional protection for those who are arrested and read their Miranda rights. But what happens when you aren’t yet in police custody but are nonetheless being questioned by police? In a 5-4 decision along ideological lines, the U.S. Supreme Court held Monday that a man questioned before police custody and not yet read his rights had not invoked his Fifth Amendment right to avoid self-incrimination, when he simply did not answer a police question and remained silent.

The ruling means that prosecutors were entitled to use Genovevo Salinas’ silence against him during a murder trial to argue that jurors should infer guilt from his silent reaction to a police question, even though Genovevo was not present at trial and couldn’t counter this assertion. Salinas had voluntarily answered several other police questions before falling silent on the question of whether shell casings found at the crime scene would match his gun.

While Justice Samuel Alito held for the court that Salinas would have had to explicitly “assert the privilege” by referring to his right to remain silent, the dissent found that defendants cannot be expected to utter particular code words, as the Supreme Court has long said there is “no ritualistic formula” necessary to invoke the privilege.

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