If You Want To Remain Silent, You’d Better Speak Up

Originally posted June 24, 2013

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On June 17, 2013, the Supreme Court decided that merely remaining silent is not enough to exercise his or her Fifth Amendment right to remain silent when being questioned by the police. Unless that person says something to invoke that right, according to the controlling opinion from the Court, then the right is not invoked and prosecutors can use that silence to infer the person’s guilt.

The case, entitled Salinas v. Texas (No. 12-246), involved Genevivo Salinas, who had gone voluntarily to the police to discuss a murder of two men. During the course of those discussions, the officers asked Salinas if the shell casings found at the scene would match his gun. Salinas became nervous, but did not answer the question.

Salinas was later charged with the murders. At his trial, the prosecution used Salinas’ silence when asked about the shell casings to infer his guilt to the jury. Salinas was convicted of the murders, and his appeal ultimately went to the United States Supreme Court.

The Controlling Opinion

Joined by Justices Roberts and Kennedy, Justice Alito wrote the plurality opinion that is the law of the case. Alito wrote that previous law had laid out two areas where silence on its own can invoke a person’s Fifth Amendment right to remain silent. The first is an absolute right for a person not to testify in his or her own case. The second is if the government is somehow forcing the person (outside of the courtroom) to give information against himself or herself, such as if the person is in police custody, is threatened with the loss of governmental benefits, or some other form of leverage to force the person to give information against his or her interests.

“[P]opular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself’; it does not establish an unqualified ‘right to remain silent.’ A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Alito wrote in the controlling opinion.

The Concurring Opinion

Justice Scalia concurred with Justice Thomas’ opinion that the Alito plurality opinion did not go far enough. Even if Salinas would have invoked his Fifth Amendment rights, Thomas wrote, it wouldn’t matter because “the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.”

Thomas believes that a prosecutor’s commenting on a defendant’s lack of testimony does not force that defendant to testify, and therefore should be allowed any time a defendant does not take the stand at his or her trial. According to Thomas, preventing a prosecutor from commenting on (and inferring guilt from) a defendant’s choice to remain silent does not have a historical basis, and the Fifth Amendment should not prevent prosecutors from doing so in any case.

The Dissenting Opinion

Justices Ginsberg, Sotomayor, and Kagan joined with Justice Breyer in the dissenting opinion. Breyer wrote that the purpose of the Fifth Amendment was to prevent the government from forcing an individual to be a witness against himself or herself. Permitting prosecutor to comment on an individual’s silence as an inference of guilt, Breyer wrote, presents an impossible choice to an individual and will invariably lead to that individual being compelled to provide an answer—or have the individual’s silence used as an inference of guilt, as with Salinas.

Breyer suggested that the Court, rather than just allow a blanket use of silence as an inference of guilt as Alito wrote, should look at the circumstances of each case to determine if an individual invoked his or her Fifth Amendment right. Breyer is also concerned that Alito’s language requiring an individual to “expressly invoke the privilege against self-incrimination” will become difficult to administer. How much is needed to “expressly invoke” the right? How will that square with the Court’s previous rulings that “no ritualistic formula is necessary in order to invoke the privilege”?

You can see the SCOTUSBlog page on Salinas v. Texas and get more information here.