The Champion

January-February 2014 , Page 16 

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Silence Is No Longer Golden: How Lawyers Must Now Advise Suspects in Light of Salinas v. Texas

By Neal Davis and Dick DeGuerin

Almost 70 years ago, Justice Robert Jackson made the following observation in Watts v. Indiana: “[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”1 But after the Supreme Court’s recent decision in Salinas v. Texas,2 Justice Jackson’s once-stalwart advice could be tantamount to malpractice if police question a suspect in a noncustodial context. Silence is no longer golden.

Under the Supreme Court’s Alice in Wonderland approach to the Self-Incrimination Clause, witnesses cannot exercise their right to remain silent in a noncustodial context unless they speak up. In a 5-4 decision,3Salinas held that a witness, whom police subject to noncustodial questioning without giving the Miranda warning, cannot rely on the Fifth Amendment unless he expressly invokes it.4 That is, if a witness remains silent in the face of such questioning, the prosecution can, at trial, introduce his silence as substantive evi

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