At the Supreme Court recently resolved in Salinas v. Texas, a person who voluntarily agrees to be interviewed by the police and remains silent to a particular question, but does not invoke his Fifth Amendment right to remain silent, cannot rely on his Fifth Amendment right to protect his silence from being used as evidence of his guilt at trial. A question left open by the Court, however, is whether a defendant in a post-Miranda interrogation can rely on his right to remain silent by refusing to answer certain questions and not fear these refusals will be used as evidence of his guilt at trial. The selective silence doctrine answers this question in the affirmative. This Note contends that the Supreme Court should uphold the selective silence doctrine and afford defendants the right to remain selectively silent in a post-Miranda custodial interrogation. It asserts that the doctrine is necessary to protect the Fifth Amendment's full privilege against self- incrimination and aligns with the Due Process Clause of the Fourteenth Amendment, which deems post-Miranda custodial silence "insolubly ambiguous." Additionally, the doctrine alleviates public policy concerns surrounding police-induced false confessions and subsequent false convictions by not positioning defendants to feel obligated to answer every question. Nevertheless, the Supreme Court should limit the selective silence doctrine to post- Miranda custodial interrogations, as these interrogations present the most psychological pressures and this limitation would provide a necessary bright-line for interrogators to recognize when the selective silence doctrine is applicable.
French, Evelyn A.
"When Silence Ought to be Golden: Why the Supreme Court Should Uphold the Selective Silence Doctrine in the Wake of Salinas v. Texas,"
Georgia Law Review: Vol. 48:
2, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol48/iss2/7