Silence, the Fifth Amendment and the Maryland Rules of Evidence: Tacit Evidence of Guilt?

On June 17, 2013, the Supreme Court issued its opinion on Salinas v. Texas. The case centered on whether or not silence was admissible as substantive evidence of guilt, specifically, one’s silence in response to a specific question after being previously cooperative during an interview with police. Salinas, suspected of murder, voluntary went to a police station and answered questions for about an hour. However, when police asked him about a ballistics report linking, he fell silent and did not answer. At trial, the prosecutor used his silence as evidence of guilt, telling the jury that an innocent person would have protested that the gun was not his. The Court, in a controversial 5-4 decision, held that Salinas’ silence was not protected under the Fifth Amendment and could be used as evidence of guilt because he had to explicitly invoke his right to silence un the the Fifth Amendment, a la Berghuis v. Thompkin, in a voluntary encounter.

In Salinas v. Texas, the Supreme Court expanded upon its previous ruling in Berghuis v. Thompkins, another case regarding the right to remain silent as defined by Miranda v. Arizona and the Fifth Amendment. In a highly controversial decision, the Court ruled that remaining silent, in and of itself, was an insufficient invocation of one’s right to remain silent. Furthermore, any and all voluntary statements made subsequent to a lengthy silence could be construed as an explicit waiver of one’s rights. Counter-intuitively, the Supreme Court held that in order to invoke one’s right to remain silent, one is required to speak and declare that very right. In Salinas v. Texas, the Court applied the standard it defined in Berghuis v. Thompkins to voluntary questioning as well.

What does the Supreme Court’s decision in Salinas v. Texas mean for Maryland? Thankfully, not much, as states can grant broader rights by way of their own laws than those recognized by the U.S. Supreme Court. In State v. Weitzel, the Maryland Court of Appeals held that a defendant’s pre-arrest silence in police presence is inadmissible under Maryland evidence law as substantive evidence of guilt. Since courts only have to follow the Supreme Court’s interpretation of the Constitution and the Weitzel case is very clearly based on state evidence statues, Salinas v. Texas does not abrogate Maryland's evidentiary precedent. Plainly speaking, silence during voluntary questioning cannot be used as evidence of guilt within the State. A Maryland Lawyer would be wise to arm herself with the Weitzel case in any criminal case where this issue is at play in State Courts. State's Attorney's in the State of Maryland may no doubt try to argue that the U.S. Supreme Court has ruled that pre-arrest silence is admissible as evidence of guilt in Maryland. However, a plain reading of the Weitzel case makes it quite clear that, in Maryland the State law is otherwise.

However, this decision has huge ramifications for federal law and questioning conducted by federal agents in federal investigations. For example, United States Code 18 U.S.C. § 1001(a) makes it a crime to make any false statements to federal agents including simply proclaiming one’s innocence. Salinas v. Texas now creates a legal "catch-22." If one remains silent, their silence may be used as evidence of guilt. Yet if one protests their innocence, they can also be found guilty of making a false statement. Hence, the Supreme Court has greatly eroded Fifth Amendment protections which are at the very heart of egalitarian jurisprudence. Ordinary citizens are not required to be akin to trained lawyers and to rattle off legal language such as: "I assert my right to remain silent under the Fifth Amendment. Whats-more, even if such assertions are made, Citizens are left at the mercy of the police to properly remember such assertions and to accurately include them in their police reports which are notorious for being self-serving documents.

What should you do if you are ever questioned by the police, voluntary or involuntary? Regardless of the legal circumstances, you are not a lawyer, no matter how much the Supreme Court wants you to be. You are well-advised to Declare your right to silence and state “under the Fifth Amendment, I wish to remain silent” in addition you should also affirm your right to an attorney and say before going any-further "I want my lawyer present.” Once you invoke these rights, no more questions are allowed to be asked.