Page 78 - Police Officer's Guide 2013

he was in custody or not. The trial court overruled the objection and allowed the evidence to be introduced. The
jury found the appellant guilty of murder.

On appeal to the Fourteenth Court of Appeals, the appellant argued that the trial court erred in admitting
evidence of his pre-arrest, pre-Miranda silence. The Court of Appeals and the Court of Criminal Appeals both
affirmed the conviction holding that evidence of silence was admissible.

The Supreme Court has held that a defendants Fifth Amendment right against compelled self-
incrimination is violated if the State is allowed to impeach the defendants testimony by using his post-arrest,
post-Miranda silence.7 The State does not violate a defendants Fifth Amendment rights, however, by cross-
examining a defendant as to post-arrest, pre-Miranda silence when a defendant chooses to testify. Furthermore,
the Supreme Court has held that prearrest, pre-Miranda silence can be used to impeach a defendant who testifies.

The plain language of the Fifth Amendment protects a defendant from compelled selfincrimination.

In pre-arrest, pre-Miranda circumstances, a suspects interaction with police officers is not compelled.
Thus, the Fifth Amendment right against compulsory selfincrimination is simply irrelevant to a citizens
decision to remain silent when he is under no official compulsion to speak.

We hold that pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against
compelled self-incrimination, and that prosecutors may comment on such silence regardless of whether a
defendant testifies.

(Ed. note: The opinion in this case recognizes, in an extended discussion, that the courts across the
country are split on this issue and the U.S. Supreme Court has yet to address it. The Court chose to apply the
above rule in Texas which is subject to change. As a matter of procedure, its best to document all facts and
circumstances surrounding the questioning of any potential suspect for possible later use in prosecution.)

Salinas v. State, NO. PD-0570-11 (Tex. Ct. Crim. App. April 25 , 2012).
th

EVIDENCE ADMISSION OF FACEBOOK MESSAGES.
The defendant and his live-in girlfriend had a fight over messages she had received on her facebook page
resulting in the suspect being convicted of aggravated assault with a deadly weapon. The defendants contention
on appeal was that facebook messages from him to his girlfriend after the incident were not proper authenticated
and not admissible. The only evidence authenticating the messages was the girlfriends testimony that she
received them from the defendants account to which she had no access and that she did not send them to herself.
The District Court allowed the evidence and this was affirmed by the Court of Appeals.

In so holding, the Court discussed the need and degree of authentication of email messages:

In analyzing whether the evidence is sufficient to support the trial courts ruling, we start by noting that
the content of the messages themselves purport to be messages sent from a Facebook account bearing Campbells
name to an account bearing Anas name. While this fact alone is insufficient to authenticate Campbell as the
author, when combined with other circumstantial evidence, the record may support a finding by a rational jury
that the messages were authored and sent by Campbell. See id. at 642; see also Commonwealth v. Purdy, 945
N.E.2d 372, 381 (Mass. 2011) (explaining that e-mail sent from Facebook account bearing defendants name not
sufficiently authenticated without additional confirming circumstances). Accordingly, we examine whether the
remaining evidence supports the trial courts ruling.

A Peace Officer’s Guide to Texas Law 71 2013 Edition