You Have the Right to Remain Silent… or Do You? Ask a NJ Criminal Defense Lawyer

The right to remain silent is a right provided to individuals to protect against the possibility of self-incrimination when suspected of committing a crime. When someone is placed under arrest and taken into custody, they are usually given a Miranda reading, which informs them of their rights, such as the right to remain silent and the right to an attorney. However, the right to remain silent has been recently limited in the 2013 U.S. Supreme Court decision in Salinas v. Texas, and consulting with a NJ criminal defense lawyer is the only way to ensure you are protected under the law in this state.

How Silence was Used Against Salinas

In 1992, Genovevo Salinas was suspected of committing a double murder in Houston and, on his own free will, agreed to accompany police investigators to the station for questioning. Salinas was not read his Miranda rights or placed in custody, and he was informed that he was free to go at any time. During the interview, Salinas answered most questions until asked whether a bullet identification test would link shell casings found at the scene of the crime to his shotgun. Salinas did not answer and instead began to move around nervously. The police decided to move on and ask other questions to which Salinas responded normally to. Salinas’ reaction to the shell casings question was used by the prosecutor to suggest that a person who hadn’t committed the crime would have answered the question.

The U.S. Supreme Court determined that when an individual is undergoing a pre-arrest interrogation and has not been read their Miranda rights, they must expressly request their Fifth Amendment privilege against self-incrimination. This puts the government on notice to allow for preparation to either argue that the testimony would not be self-incriminating or provide the person with immunity.

When Does the 5th Amendment Privilege Automatically Apply?

There are two circumstances when a person does not have to invoke his or her privilege under the Fifth Amendment: as a defendant in a criminal trial, because of the right not to testify, and when placed in a custodial interrogation setting and intimidation from an official prevents him or her from invoking the privilege. Although a person may remain silent relying on the protection of the privilege, the Court stated that there could be other reasons a person remains silent, such as trying to come up with a lie, which makes it necessary to know the reasons for refusing to answer a question. The Court stated that the Fifth Amendment provides a right not to testify against yourself, not to remain silent. Since Salinas was not placed in custody and the police did not prevent Salinas from invoking the privilege, his silence could be used as evidence against him at trial.

Will the Salinas Decision Affect New Jersey Law?

States such as California, Arizona and Tennessee have begun to implement the standard created by Salinas in similar cases involving the right to remain silent. These courts look to two specific factors: whether the individual was placed in police custody and whether they have been read their Miranda rights. These courts have found that the right to remain silent changes when a person has been read their Miranda rights, in which remaining silent can invoke the Fifth Amendment privilege without expressly requesting the protection.

Although New Jersey courts have yet to rely on Salinas v. Texas, this may not be seen as a surprise since the New Jersey common law provides more protection against self-incrimination than provided under the Fifth Amendment. It can be assumed that when it comes to similar cases, New Jersey courts may produce similar outcomes to those decided in neighboring states, or they could venture out on their own based on the extended protection they provide. The lingering concern seems to be how much is enough for a person to say in order to invoke their right to remain silent. Consulting with a NJ criminal defense lawyer is key to knowing your specific rights in this state.

Protect Your Rights with a NJ Criminal Defense Lawyer!

If you have been taken in for questioning, have not been read your Miranda rights, and wish to invoke your Fifth Amendment privilege, you must make sure to express this to the officer. If you have been charged with a criminal offense in New Jersey and were not afforded these rights, it is important to contact an experienced NJ criminal defense lawyer to make sure your rights are protected.  Call (732) 965-3350 immediately for a free evaluation of your case before your first court date.

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