The United States Supreme Court, in US v. Salinas, recently held that a witness, whom police subject to noncustodial questioning without giving the Miranda warning (i.e. right to an attorney and to silence), cannot rely on the Fifth Amendment unless he expressly invokes it. As a result, if a witness remains silent in the face of such questioning, the prosecution can, at trial, introduce his silence as substantive evidence of his guilt. Further, according to this new law, the police do not have to inform the witness in advance of his right against self-incrimination.
The US v. Salinas Court reasoned that “before [a witness can] rely on the privilege against self-incrimination, he [is] required to invoke it.” Salinas, 133 S. Ct. at 2184. Because Salinas remained silent, instead of expressly invoking his right against self-incrimination, the prosecution could use his silence as substantive evidence of his guilt.
If you have been contacted by law enforcement, and you are concerned you may incriminate yourself, please give me a call to better understand your rights.