Prosecutors can stop getting giddy over Salinas, because it does not address the limited to non-existent probative value of silence
Prosecutors can stop getting giddy over Monday’s Supreme Court Salinas opinion, because it does not address the limited probative to non-existent value of silence. Salinas only says that the Fifth Amendment right to remain silent cannot be invoked, pre-arrest, by silence.
Salinas does not bar trial judges from ruling that evidentiary rules bar pre-arrest silence from coming into evidence.
VIRGINIA EVIDENCE LAW
Taylor v. Com. is still good law in saying that pre-arrest silence is too vague to come into evidence at trial:
“Several courts have held that a person may remain silent in the face of police accusations or questions for reasons other than acquiescence to an accusation of guilt…In this vein, many courts have excluded such evidence because its prejudicial effect outweighs its slight probative value.”
Taylor v. Virginia., 26 Va.App. 485, 497, 495 S.E.2d 522 n.8 (1998).
MARYLAND EVIDENCE LAW
Nor does Salinas disturb the Maryland evidence law that makes pre-arrest silence inadmissible at trial:
Although the Supreme Court has required only that such warnings be given when police are engaging in custodial interrogation, the average citizen is almost certainly aware that any words spoken in police presence are uttered at one’s peril. While silence in the presence of an accuser or non-threatening bystanders may indeed signify acquiescence in the truth of the accusation, a defendant’s reticence in police presence is ambiguous at best. We hold that pre-arrest silence in police presence is not admissible as substantive evidence of guilt under Maryland evidence law.
Weitzel v. Maryland, 381 Md. 451, 461, 863 A.2d 999 (2004).
I anticipate that plenty of prosecutors will claim, wrongfully, that Salinas trumps Taylor and Weitzel, respectively in Virginia and Maryland, and that plenty of judges will need to be shown the above Taylor and Weitzel passage before they will bar such silence at trial. Salinas only says that, pre-arrest, one cannot invoke one’s Fifth Amendment right to remain silent through merely being silent. Salinas is silent about whether pre-arrest silence is too ambiguous to be admissible at trial.