Last month, the Supreme Court issued its ruling on Salinas v. Texas, in which it held that during pre-custodial police questioning, a suspect must verbally and explicitly invoke his Fifth Amendment right to remain silent. If the suspect does not verbalize this, then his silence can be used against him at trial as evidence of his guilt. In the wake of Salinas, it is now more difficult to know how to invoke your rights if the police are questioning you. This guide will help you protect and invoke your Fifth Amendment right to remain silent.
1. Ask if you are free to leave
The first thing to say if you are undergoing police questioning is: “Am I free to leave?” Asking this immediately clears up any confusion between the police officers and you and will clarify whether or not you are undergoing pre-custodial or custodial questioning. If you attempt to leave and a police officer stops you, then it is safe to assume that you are not free to leave. It goes without saying that if you wish to remain silent and are free to leave, then you should immediately leave. In Salinas, the defendant did not expressly invoke his Fifth Amendment right during pre-custodial questioning and his silence was used against him at trial. Rather than expressly invoking that right and risking the possibility of saying the wrong thing, leave. You need not explain why you’re leaving, just leave. If you are not free to leave and are under arrest, then…
2. Ask to speak to an attorney
The best thing to do in the case of custodial questioning is to have an attorney assist you. If you are under arrest, you must still expressly invoke your Fifth Amendment right, as was decided in Berghuis v. Thompkins (2010). Saying “I’d like to have an attorney” automatically invokes your Fifth Amendment right and the questioning stops. Even if you wish to speak to police about the matter, it is generally in your best interest to have an attorney present.
These guidelines are simple but effective. Follow these rules and you should have no problem exercising your Fifth Amendment right to remain silent: Ask if you are free to leave, and if so, leave. If not, speak to an attorney. It’s that easy.