Can police use your silence against you? Supreme Court to decide.

The US Supreme Court agreed Friday to decide whether prosecutors can use an individual’s refusal to answer police questions as evidence of guilt at a subsequent trial if the silence came prior to being taken into police custody.

While the high court has long held that criminal suspects who are in police custody have a Fifth Amendment right to remain silent, the court has never decided whether a similar right protects interactions with police prior to an arrest.

Suspects are routinely advised in Miranda warnings that they have a right to remain silent. That right stems from the Fifth Amendment protection against being compelled to provide evidence against oneself at trial.

But it is not clear whether the same protection applies to statements made to police at the earliest stages of an investigation.

The issue arises in a 1992 Texas double murder case involving a man who was voluntarily answering a series of questions by police at a police station but then refused to answer when officers posed a specific query: whether his shotgun would match shells recovered at the scene of the killings.

Confronted with that question, Genovevo Salinas responded with silence.

At his trial, the prosecutor sought to use Mr. Salinas’s silence as evidence of guilt. The prosecutor told the jury: “You know, if you asked somebody – there is a murder in New York City, is your gun going to match up [with] the murder in New York City?...  An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He [Salinas] didn’t respond that way. He didn’t say: No, it’s not going to match up.”

The jury convicted Salinas of the double murder. The conviction was upheld on appeal.

In urging the US Supreme Court to hear Salinas’s case, his lawyers noted that federal appeals courts and state supreme courts are sharply divided over the issue.

Ten courts have ruled that the Fifth Amendment right to silence in the face of police questioning extends to pre-arrest contacts, while nine other courts have ruled that there is no such protection before someone is in police custody or given Miranda warnings.

“The need to resolve this conflict is manifest,” Stanford Law Professor Jeffrey Fisher wrote in his brief on behalf of Salinas.

“There can be no serious dispute that the question whether the Fifth Amendment protects pre-arrest, pre-Miranda silence in the face of law enforcement questioning is extremely important,” he wrote.

“Police officers and other law enforcement agents across the country attempt to conduct such questioning on a daily basis – approaching everyone from suspects of common street crime to high-ranking executives of Fortune 500 companies.

“Many of these investigations turn into prosecutions and, like this case, eventually proceed to trial,” he said.

Harris County Prosecutors had urged the high court to reject Salinas’s appeal. They said the Texas courts had ruled correctly that the Fifth Amendment does not apply to pre-arrest, pre-Miranda silence when that silence is presented as evidence of guilt at a trial.

The prosecutors said that during a 58-minute interview with police, Salinas answered all but one question. At the trial, a police officer told the jury of Salinas’s reaction to being asked the question about the shotgun.

The officer said he “looked down at the floor, shuffled his feet, bit his lower lip, clinched his hands in his lap, began to tighten up.”

When officers asked a new set of questions, Salinas once again became talkative, they said. The prosecutors added that in his own way Salinas answered the question about the shotgun through his nonverbal conduct. They added that he never invoked the Fifth Amendment privilege against self-incrimination.

The issue has created a sharp rift within the nation’s appellate courts. Among courts ruling that a defendant’s pre-arrest silence may not be used as evidence of guilt are federal appeals courts based in Boston, Cincinnati, Chicago, and Denver, and state supreme courts in Idaho, Nebraska, New Hampshire, Ohio, Washington, and Wisconsin.

Courts upholding the use of silence as evidence at trial including federal appeals courts based in New Orleans, Atlanta, Richmond, and St. Louis, and state supreme courts in Texas, Minnesota, Missouri, Maryland, and North Dakota.

The case is Salinas v. Texas (12-246).

The case was one of six appeals that the justices on Friday agreed to decide.

They include a First Amendment challenge examining whether the US government can require private health organizations to adopt a policy in opposition to prostitution and sex trafficking as a condition of receiving federal funding to fight the spread of AIDS.

The groups objected to being forced to embrace a government viewpoint in exchange for receiving funding. They said it violated their First Amendment rights.

A federal judge and a federal appeals court agreed.

The case is US Agency for International Development v. Alliance for Open Society International (12-10).