Posted on 1/9/17

The seminal 1966 case of Miranda v. Arizona posited that statements to police during an interrogation will only be admitted as evidence during a trial if the police informed the defendant the he or she had the right to remain silent and was allowed an attorney. Since then, popular culture has repeatedly informed Americans that they have a right under the Fifth Amendment to the United States Constitution to remain silent in their dealings with police officers. Nonetheless, there remains considerable debate surrounding the right’s precise scope and the requirements for its assertion.

Your Right to Remain Silent

For years, one issue has proven particularly controversial: Can prosecutors introduce evidence at trial that a criminal suspect remained silent during police questioning or custody, thereby raising an inference that about the defendant’s guilt? As the logic goes, no innocent person would stay silent in the face of criminal accusation. However, while evidence law generally permits this move as an inference of guilt, there exists a countervailing constitutional concern when police are involved: Using a defendant’s silence as probative evidence of guilt may punish him or her for exercising that right, which is directly at odds with the Fifth Amendment. It can be more perplexing during informal questioning, which is the subject of the Salinas v. Texas case.

Salinas v Texas

A fight erupts outside a bar, so a bar patron calls the police. The police arrive, survey the scene, and do a quick investigation. Once they identify a suspect, the police arrest him and bring him to prison.

Perhaps the police act on a tip about a drug sale and go to the rendezvous point. Once there, they wait patiently for the drug sale to occur. When it happens, the police come out of hiding and arrest the perpetrators, bringing them to prison.

Once the suspect arrives at the prison, the police book him and take a mugshot. They also usually take the suspect for questioning. The booking process involves requiring the suspect to wear a prison jumpsuit and be assigned to a cell.

Over the next few days, the police will escort the suspect to the courthouse for an arraignment. At that point, the prosecutor will state a few words about the case and the suspect might enter a plea. At that juncture, the judge will set bail.

Release from Prison

To gain release from prison and to assure that the suspect does not run away, the Texas Code of Criminal Procedure allows for a suspect to leave in exchange for a bail bond. Under English Common Law, bonds were not used; instead, a person only left prison if another person agreed to take his place, thereby assuring that the defendant would return. These days, the bonding system allows a defendant to leave prison and return home.

Bail Bond Process

Often, defendants do not have sufficient cash to post bail. Simply posting cash for bail is called a cash bond. Most defendants will go to a third party to post bail, which is called a surety bond. A surety bond occurs when a third party posts bail on behalf of a defendant. The surety will pay the full amount of the bond and upon the defendant’s return to court will receive a refund. If the defendant goes missing and does not return to court, then the court will keep the posted bond amount. The defendant, on the other hand, pays a small portion to the surety, usually between 5% and 10%. Note that the defendant will not receive any money back; the payment to the bail bondsman is the fee for the surety to post bail.

Keep in mind that when a defendant pays the bail bondsman/surety, the surety has a financial interest in the defendant returning to court. Thus, if the defendant does not return to court, the police will chase the defendant on behalf of the court, and the surety will chase the defendant on behalf of his or her business. Bail bondsman usually have bounty hunters standing by to assist in ensuring that the defendant returns to court.    

If you find yourself under arrest, know that you have rights. The criminal justice system can be harsh. Contact a lawyer who is skilled, knowledgeable, and experienced in Texas criminal law. Contact the law firm of Christopher Abel.

(imge courtesy of

In 2013, the United States Supreme Court heard the case of Salinas v. Texas, a 20-year old murder case. In that case, Genovo Salinas was convicted of killing two men in Houston during a 1992 house party. During a January 1993 police questioning, which the police initially convened to clear Salinas as a suspect, police asked him numerous questions. They did so without reading him Miranda rights. Salinas was free to leave at any time and was not under arrest. When asked about whether Salinas’s shotgun would match the shells recovered from the murder scene, Salinas went silent, shuffled his feet, and bit his lip.


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