In 1992, police found shotgun shells that authorities say were linked to the murder of two brothers in Houston. Law enforcement grew suspicious of a man and decided to ask him some questions, but apparently police did not have enough for a formal arrest. The man agreed to go to the police station and speak with the officers. At some point, an officer asked the man if a shotgun the man had access to would be linked to the shells police had already found during the police probe. The man did not answer. He remained silent.
At trial, prosecutors used that silence as evidence of guilt against the man and he was convicted. The man was sentenced to 20-years in prison. At that time, the case probably had little impact in Baton Rouge. However, the man appealed his conviction and the case made it all the way to the U.S. Supreme Court.
In a 5 to 4 split-decision, the high court upheld that conviction. A majority of the court found that the pre-arrest silence during questioning did not deserve Fifth Amendment protections. That amendment is behind the reason we all hear Miranda warnings on TV cop dramas. The Fifth Amendment protects the right to remain silent.
The high court ruling was not necessarily one of overall agreement. Three justices ruled that the man did not expressly invoke his rights during questioning, while two more reasoned that the pre-arrest issue would fail even if the man had invoked his rights. The man was not represented by defense counsel during the interrogation.
Four justices disagreed. Justice Stephen G. Breyer, writing a dissenting opinion joined by three others, wrote that allowing "a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament," according to the New York Times. The dissenting opinion continued that the man was given the impossible choice "between incrimination through speech and incrimination through silence."
Baton Rouge criminal defense lawyers are aware that investigators frequently question people long before criminal charges, or even an arrest, exist. A person may seek representation long before a criminal charge is filed when allegations surface.
Source: The New York Times, "A 5-4 Ruling, One of Three, Limits Silence's Protection," Adam Liptak, June 17, 2013