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By Kimkea Harris, Attorney - Tuesday, October 8, 2013


The Supreme Court Ruling in Salinas v. Texas:

No right to remain silent unless it is expressly invoked.

Is Salinas a Slam Dunk for Law Enforcement or a Major Roadblock?

On June 17, 2013, the United States Supreme Court in a plurality decision shocked the nation by declaring that the United States Constitution 5th Amendment right to remain silent must be expressly asserted by an individual. If not, then that person’s reactions and silence in response to pre-custodial questioning can be used against them in a criminal prosecution as an indicator of possible guilt.

An initial review of this decision would lead to calls for a celebration of blue lights glowing with the revelation that our highest court truly understands the dilemma facing those in law enforcement when trying to solve crimes. Those actions of individuals who clam up at casual questioning and are later developed as suspects could help seal their conviction at a later date. Unless this individual states the words “I plead the 5th”, then the entire interview and every gesture or movement pre custodial and post- custodial becomes relevant and can be used in a court of law. This ruling paves the way for law enforcement to ensure that more bad guys get the time they so rightfully deserve.  Or does it?


This case involves Genovevo Salinas of Houston, Texas, who was invited down to the police station for questioning “to take photographs and clear him as a suspect” in a double homicide in 1993.  It is agreed that at no time during this interview was Salinas in custody or given his Miranda rights. Salinas voluntarily answered all the questions presented by the police. However when Salinas was asked whether the shotgun he allowed the police to inspect would match the shotgun shells found at the scene of the crime, Salinas did not answer that question.

“Instead he looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap and began to tighten up. After a few minutes of silence, the officer asked additional questions, which Salinas answered.” (570 U.S. _____ (2013)(slip opinion))

Following the interview, police arrested Salinas on outstanding traffic warrants, but prosecutors determined there was insufficient evidence to charge him with the murders and he was released. Later as the case developed, the police obtained additional evidence and were able to charge Salinas with the murders.

Salinas did not testify at trial, but over the defense objections, the prosecutors used his reaction to the officer’s questions as evidence of guilt. Salinas was later convicted of the double murders.  Salinas appealed his conviction and contested that his refusal to answer the specific questions violated his right against self-incrimination and his silence was protected by the 5th Amendment of the United States Constitution.


No matter how daunting this decision is for criminal defendants and defense attorneys and how it appears to be manna from heaven to prosecutors nationwide…what effect does it truly have on law enforcement’s daily activities?

In this case, the defendant Salinas had not been identified as a possible suspect but was simply a potential witness in a double homicide. Salinas voluntarily went to the police station and spoke to the police regarding this investigation. It was not until Salinas was asked this specific question by the police did he decline to cooperate. In fact, immediately after he was asked a different question he continued to voluntarily talk to the officers.  However, it was this break in his response that was emphasized in his criminal trial and used to demonstrate his guilt of the alleged crimes. It was this silence that was used against Salinas.

In reality, how often do investigators in law enforcement rely on the statements from witnesses or possibly interested parties to gain crucial crumbs of evidence to crack a case?  In reality, many witnesses have had some contact with the criminal justice system and can be considered “savvy” when it comes to knowing their rights and having a criminal lawyer on standby. Indeed these witnesses can easily turn into a suspect, but in reality how often is that person just someone who can help lead law enforcement to the real perpetrator? In your everyday work how often do you rely on confidential informants, those individuals who may also have a less than stellar record, to lead you to the capture of the true “big fish”? With this new decision, how will the precarious relationship between law enforcement and these “informants” be affected when these invaluable individuals decide it is too much of a risk to have any conversations whatsoever with law enforcement, because what they don’t say outside of an in custody interview can be used against them?

I believe the ramifications of this decision will be long reaching and may provide more of a hinder than help to law enforcement. This can have a chilling impact on communication between investigators and witnesses and we are at the precept of discovering the true reach of the shadow cast by the United States Supreme Court’s decision in this case.

I am most disturbed by the community reaction to this decision. Granted a lot of attention is being paid to how this will affect the average citizen and whether he/she will be knowledgeable of his/her rights and how to invoke them However, a review of the comment sections of several articles reveal a constant theme…don’t talk to the police…ever.

I look forward to seeing if Salinas will help police officers do their jobs more efficiently and rid our streets of dangerous criminals or will it cloak the bad guys in dangerous silence.

Editor's note: Kimkea' L. Harris is an attorney with the Illinois FOP Labor Council working out of our Western Springs Office. She has a B.A. in political science from Fisk University and a law degree from Washington and Lee University School of Law. Prior to joining the Labor Council, she was the Coordinator of Labor Relations for Memphis City Schools, Assistant City Attorney for City of Memphis, and Assistant District Attorney for Shelby County.