The 5th Amendment right against compelled self-incrimination  does not apply to pre-arrest, pre-Miranda silence used as substantive evidence of guilt in cases in which a defendant does not testify. In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled. The 5th Amendment right against compulsory self-incrimination is irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak. Prosecutors may comment on such silence regardless of whether a defendant testifies.

Salinas v. State
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