Rules to Live By – Update…

After reading Alford v. State, ___ S.W.3d ___ (Tex.Crim.App. 2012) (see previous post), I decided to update my “Rules to Live By” first published in my March 12, 2011, post. I have added Rule Number 4. My updated Rules to Live By are as follows:

Rule Number 1: Do not talk to the police.

Rule Number 2: Always follow Rule Number 1.

Rule Number 3: First thing, ask for a lawyer.

Rule Number 4: Identify yourself and shut up.

Exercise your right to remain silent – do not cooperate with the police.

Even answering simple questions can have disastrous results.

Miranda – Routine Booking Question Exception…

In Miranda v. Arizona, the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966).

The Supreme Court later elaborated upon the meaning of “interrogation” under Miranda explaining that the term refers to (1) express questioning and (2) “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

A four-justice plurality subsequently recognized, as a type of question “normally attendant to arrest and custody,” a “routine booking question exception” to Miranda that “exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services.” Pennsylvania v. Muniz, 496 U.S. 582, 600-02 (1990). Writing the plurality opinion, Justice Brennan explained that questions that are asked “for record-keeping purposes only” and are “reasonably related to the police’s administrative concerns . . . fall outside the protections” of Miranda. Muniz, 496 U.S. at 601-02. The Court held that questioning Muniz about his “name, address, height, weight, eye color, date of birth, and current age” were Miranda exempt because these questions were “reasonably related to the police’s administrative concerns.” Muniz, 496 U.S. at 601-02.

Texas courts have consistently recognized this routine booking question exception to Miranda. The most recent Texas Court of Criminal Appeals decision on the exception is Alford v. State, ___ S.W.3rd ___, (Tex.Crim.App. 2012). In Alford, Cecil Alford was arrested for evading arrest. After he was transported to the county jail, the arresting officer searched the back seat of his patrol car and found a clear plastic bag containing several pills. Directly under the bag he found a flash drive. The officer showed the flash drive to Alford and asked him what it was – Alford said it was a memory drive. The officer ask Alford if it was his and Alford said yes. Subsequent testing revealed that the pills were ecstacy. Alford was then charged with possession of a controlled substance. At trial, the State introduced the statements concerning the flash drive to help establish Alford’s knowledge and possession of the controlled substance. The jury convicted Alford and he was sentenced to five years’ confinement in the Texas Department of Corrections.

Prior to trial, Alford filed a motion to suppress his statement concerning the flash drive claiming that the questioning by the arresting officer violated Miranda. The trial court denied the motion to suppress ruling that the question was a routine booking question and was not in violation of Miranda. On appeal, the Texas Court of Criminal Appeals confirmed Alford’s conviction. To read the Court’s opinion, click here: Alford v. State.

Your Silence Can Be Used Against You…

Texas law now allows your silence to be used against you whether you testify at your trial or not – another excellent reason to never voluntarily talk to law enforcement officers. In Salinas v. State, No. 14-09-00395-CR, 2011 WL 903984 (Tex.App.-Houston [14 Dist.] Mar 17, 2011) the Court held that the Fifth Amendment to the United States Constitution has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify. To read the Court’s opinion, click here.

As a result of the Salinas decision, if you voluntarily talk to law enforcement officers and refuse to answer a question or otherwise remain silent when asked a question, your silence can be placed into evidence and the prosecution can argue to the jury that your silence is evidence of guilt.

Since 1980 the law has been clear that if a defendant does testify at his trial, his pre-arrest silence can be used to impeach him. See Jenkins v. Anderson, 447 U.S. 231, 238-240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The United States Supreme Court held that the use of pre-arrest silence to impeach does not violate the Fifth Amendment because “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Jenkins at 238, 100 S.Ct. 2124.

Although Texas law now allows pre-arrest silence to be used against a non-testifying defendant, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.