Texas law now allows your silence to be used against you whether you testify at your trial or not – another excellent reason to never voluntarily talk to law enforcement officers. In Salinas v. State, No. 14-09-00395-CR, 2011 WL 903984 (Tex.App.-Houston [14 Dist.] Mar 17, 2011) the Court held that the Fifth Amendment to the United States Constitution has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify. To read the Court’s opinion, click here.
As a result of the Salinas decision, if you voluntarily talk to law enforcement officers and refuse to answer a question or otherwise remain silent when asked a question, your silence can be placed into evidence and the prosecution can argue to the jury that your silence is evidence of guilt.
Since 1980 the law has been clear that if a defendant does testify at his trial, his pre-arrest silence can be used to impeach him. See Jenkins v. Anderson, 447 U.S. 231, 238-240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The United States Supreme Court held that the use of pre-arrest silence to impeach does not violate the Fifth Amendment because “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Jenkins at 238, 100 S.Ct. 2124.
Although Texas law now allows pre-arrest silence to be used against a non-testifying defendant, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.