Supreme Court Says Silence Is Not Golden With Fifth Amendment

June 17, 2013

On the morning of December 18, 1992, two brothers were shot and killed in their Houston, TX, home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. 

The ensuing investigation led police to Genovevo Salinas, who had been a guest at a party the victims hosted the night before they were killed. Police visited Salinas at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. 

The Interview

The police interview lasted about one hour and was deemed "non-custodial" - meaning the Salinas was free to leave. Apparently Salinas was not read his Miranda warnings during the interview, during which he answered the police officer's questions. At some point, the police asked whether Salinas thought that his shotgun "would match the shells recovered at the scene of the murder." In response to that question, Salinas "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." After a few moments of silence, the officer asked additional questions, which Salinas answered. 

Following the interview, police arrested Salinas on outstanding traffic warrants but prosecutors concluded that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard Salinas confess to the killings. Based on that statement, prosecutors decided to charge Salinas, who,  by this time, had absconded. 


In 2007, police discovered Salinas living in the Houston area under an assumed name.  He did not testify at trial; however, over his objection, prosecutors used his reaction to the officer's question during the 1993 interview as evidence of his guilt. 

Tried And Sentenced

The jury found Salinas guilty, and he was sentenced to twenty years in prison. The Texas State Court of Appeals and Court of Criminal Appeals affirmed, rejecting Salinas's claim that the prosecution's use of his silence in its case in chief violated the Fifth Amendment.  The case was appealed to the U.S. Supreme Court. GENOVEVO SALINAS, PETITIONER v. TEXAS (US Supreme Court, 570 U.S. __,  No 12-246, June 17, 2013).  

Sounds Of Silence

On appeal the Supreme Court concluded that petitioner Salinas's Fifth Amendment claim failed because he did not expressly invoke the privilege in response to the officer's question. 

SIDE BARALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

The Court held that in order to prevent the Fifth Amendment privilege against self-incrimination from shielding information not properly within its scope, a witness who "desires the protection of the privilege . . . must claim it" at the time he relies on it. 
The Court has recognized two exceptions to that requirement:
  1. a criminal defendant need not take the stand and assert the privilege at his own trial; 
  2. a witness' failure to invoke the privilege against self-incrimination must be excused where governmental coercion makes his forfeiture of the privilege involuntary. 
In affirming the lower courts' rulings, the Court found that Salinas had agreed to accompany the officers to the station and was free to leave at any time. Moreover, the Court rejected what Salinas purportedly sought to advance as a third exception to the express invocation requirement:
  • A witness chooses to stand mute rather than give an answer that officials suspect would be incriminating.
Although Salinas claimed that reliance on the Fifth Amendment privilege was the most likely explanation for his silence, the Court held that such silence is "insolubly ambiguous" because, for example, petitioner might have declined to answer the officer's question because he was 
  • trying to think of a good lie; 
  • embarrassed; or  
  • protecting someone else. 
As such, not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. The Fifth Amendment guarantees that no one may be"compelled in any criminal case to be a witness against himself," not an unqualified "right to remain silent." The Court has long required defendants to assert the privilege in order to subsequently benefit from it, and this rule has not proved difficult to apply in practice. 

Thundering Silence?

The Dissent asserts that:

[S]alinas' silence derived from an exercise of his Fifth Amendment rights. This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime. See Dickerson v. United States, 530 U. S. 428, 443 (2000); Brogan v. United States, 522 U. S. 398, 405 (1998); Michigan v. Tucker, 417 U. S. 433, 439 (1974). The nature of the surroundings, the switch of topic, the particular question-all suggested that the right we have and generally know we have was at issue at the critical moment here. Salinas, not being represented by counsel, would not likely have used the precise words "Fifth Amendment" to invoke his rights because he would not likely have been aware of technical legal requirements, such as a need to identify the Fifth Amendment by name. . .