Repeat after me: “I take the Fifth Amendment. I will remain silent”
Monday’s Supreme Court Salinas v. Texas case — when considering the plurality and dissenting views together —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.
Salinas is beneficial in jurisdictions that previously gave a green light to admitting pre-arrest silence — even where the Fifth Amendment was invoked — but potentially harmful in jurisdictions that previously prohibited all pre-arrest silence against a non-testifying suspect. My overview of the pre-arrest silence caselaw that applied pre-Salinas is here.
Consequently, to protect one’s right to remain silent pre-arrest, it is critical to respond to police questioning along the lines of: "I take the Fifth Amendment. I will remain silent" after every question that the police ask. Hopefully, police will be honest about a suspect’s invocation of his or her right to remain silent.