Salinas v. Texas: Do Americans Still Have the Right to Remain Silent?

While the U.S. Supreme Court has yet to release its most highly anticipated opinions, there has been no shortage of controversy. In Salinas v. Texas, the justices raised the bar for criminal suspects seeking to invoke their constitutional right to remain silent.

The Court held that remaining silent during police questioning without formally invoking the right can be used as evidence by prosecutors at trial, essentially requiring suspects to either use it or lose it. Critics of the decision argue that the Fifth Amendment decision increases the risk of police misconduct and false confessions during informal, pre-arrest police questioning.

In 1992, the investigation of a double homicide led Houston police to Genovevo Salinas. He voluntarily agreed to accompany officers to the police station for questioning. For approximately one hour, Salinas answered all of the questions posed by police. He was not placed under arrest or read his Miranda rights. However, when asked whether shotgun shells found at the murder scene would match a shotgun found at his home, Salinas remained silent. According to the officer questioning Salinas, he also demonstrated signs of deception.

After ballistics testing confirmed the shells were a match, Salinas was charged with murder. After evading capture for 15 years, Salinas stood trial, and the prosecution introduced evidence of his silence regarding the gun casings. The trial court allowed the evidence over the objection of Salinas’ defense attorney. Salinas was subsequently convicted and sentenced to 20 years in prison.

The Court affirmed the conviction by a vote of 5-4. However, the plurality opinion, written by Justice Samuel Alito, received the support of only Chief Justice John Roberts and Justice Anthony Kennedy.

Although the Court agreed to hear the case to resolve a circuit split regarding whether the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights, the three justices never got that far. They ruled that the Salinas’ challenge failed because he failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.

“A witness’s 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, ” the opinion states. As Justice Alito further explains, “To be sure, petitioner might have declined to answer the officer’s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment.”

Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for different reasons. They reasoned that Salinas’ claim would fail even if he invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.

Justice Stephen Breyer authored the dissenting opinion, which was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  The dissenters criticize the plurality opinion’s deviation from the well-established principle that “no ritualistic formula is necessary in order to invoke the privilege.” Rather than requiring suspects to use a set of “magic words,” Justice Breyer argues that courts should ask: “Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege?”