Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.
Lower court opinion (Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012))
This case could have a significant impact on Wisconsin law. Here’s the background:
Courts are split as to whether the state may introduce evidence of a non-testifying defendant’s silence in response to questions asked before he is both arrested and given Miranda warnings. Courts allowing such evidence essentially hold that the right to remain silent attaches only after arrest and that a suspect’s silence before he is in custody can be converted at trial into an implied admission of guilt. Other courts, however, hold that such evidence violates the Fifth Amendment because the right to remain silent and not incriminate oneself is operative whenever the police are asking questions, and is not triggered only by arrest.
Wisconsin has long been in the second camp. In State v. Fencl, 109 Wis. 2d 224, 232-38, 325 N.W.2d 703 (1982), the supreme court held that:
The Fifth Amendment protects a person from compelled self-incrimination at all times, not just upon arrest or during a custodial interrogation. Any time an individual is questioned by the police, that individual is compelled to do one of two things—either speak or remain silent. If both a person’s prearrest speech and silence may be used against that person … [he] has no choice that will prevent self-incrimination.
The U.S. Supreme Court has not addressed this issue head-on, though it has answered related questions dealing with defendants who testify. Specifically, a defendant’s right against compelled self-incrimination is violated if the state is allowed to impeach the defendant’s testimony by using his post-arrest, post–Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976). On the other hand, the state may impeach a defendant who testifies by cross-examining the defendant as to pre-arrest, pre–Miranda silence, Jenkins v. Anderson, 447 U.S. 231 (1980), or post-arrest silence where there have been none of the affirmative assurances about silence not being used against the defendant (such as those embodied in Miranda warnings), Fletcher v. Weir, 455 U.S. 603 (1982). In State v. Sorenson, 143 Wis. 2d 226, 248-59, 421 N.W.2d 77 (1988), the last two rulings were applied to limit Fencl to non-testifying defendants.
A final note: It is unlikely Fencl could be saved based on the state constitution in the event the Supreme Court affirms the lower court’s decision. Except for a footnote referring to Art. I, § 8 (at 109 Wis. 2d at 237 n.9) , Fencl discusses only the Fifth Amendment. Moreover, Sorenson rejected the defendant’s argument that the state constitution gives greater protection to a testifying defendant, concluding that there was no basis in that case for interpreting state constitutional language beyond the scope of the federal constitutional language (143 Wis. 2d at 259-60). Thus, the Supreme Court’s decision in this case is important and will almost certainly determine the continuing validity of Fencl.