Repeat after me: “I take the Fifth Amendment. I will remain silent”

Jun 18, 2013 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.

Prosecutors can stop getting giddy over Salinas, because it does not address the limited to non-existent probative value of silence
What happens when SCOTUS reviews its own First Amendment-violative limits on free expression inside and outside its building?
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