This past Monday the Supreme Court split in Salinas v. Texas deciding that a prosecutor may take advantage of a defendant’s right to remain silent, in pre-custodial circumstances, if that right was not expressly asserted by the defendant. In other words, the court suggested that someone not in custody must explicitly declare their Fifth Amendment right to remain silent in order to avoid the prospect of a DA using that silence to draw inferences of guilt at trial. The facts of the case make the proposition a little clearer: After a 1992 double murder, Genovevo Salinas agreed to speak to Houston police. At an interview, Salinas answered a number of questions, but when police asked him if shells recovered at the scene of the crime would match his shotgun, he fell silent and thereafter refused to cooperate. At trial the prosecutor made the argument that Salina’s silence was evidence of his guilt.

The Fifth Amendment protects an individual’s right against self-incrimination. Normally, this right comes into play right after an individual has been arrested and “mirandized.” A defendant is told that he or she has “the right to remain silent” etc., and that “anything you say can and will be used against you.” If a defendant or anyone declines to testify at trial – the prosecutor can’t capitalize on that choice by attempting to illicit an inference from the jury. For example, a prosecutor can’t say to the jury, “We’ve given you our side of the story, but the defendant has not, and there’s only one reason why that is…”  The logic for both of these rules makes sense. First, a suspect, right after being arrested, may not have the foresight, knowledge, or legal experience to discern what types of things would or would not be prudent to say. At trial, the rational is more structural; if a defendant really has a right against self-incrimination, exercise of that right should not be used against that defendant.

Had Salinas been arrested and held in custody, his decision to remain silent would have been completely inadmissible as evidence. But because he was not, Salinas was required to expressly assert his right to remain silent. On this point, Justice Alito writing for the majority stated, “it would have been a simple matter for him [Salinas] to say that he was not answering the officer’s question on Fifth Amendment grounds.”

Unfortunately, not everyone is as conversant with the Fifth Amendment as Justice Alito might like. Were it otherwise, this case and dozens other Miranda cases would have never been litigated in the first place.

More importantly though, Salinas brings to bear the significant tension between unnecessarily hampering law enforcement’s ability to acquire and use information provided by suspects, especially when provided voluntarily, and the utility and accessibility of the guarantees provided by the Fifth Amendment. On this latter point, Salinas seems to make something of a departure from the Court’s traditional belief that while many, if not most, people understand that they don’t have to answer police questions, “no ritualistic formula is necessary in order to invoke the privilege [against self-incrimination].”[1] Moreover this departure is permitted on the grounds that the defendant was not yet in custody. However, when someone submits to questioning but is then faced with a question that can prompt a self-incriminating response, the Fifth Amendment still remains active to protect the defendant’s rights to an adversarial proceeding. Conditions requiring express or precise assertions of the Fifth Amendment have no more logical basis at this point compared to after arrest or before submitting to police questioning.

As a number of commentators have already suggested, this ruling will not be particularly helpful and may have only complicated existing law. First, the main question was left unanswered; the majority expressly withheld judgment on whether, more generally, a prosecutor can bypass a person’s reliance upon the right against self-incrimination when that person has not been arrested. The court was able to avoid this because Salinas never asserted his Fifth Amendment rights.

Additionally, the inquiry into whether an individual has properly asserted the right to remain silent will likely be uninsightful. As the dissent noted “A prosecutor may not comment on the fact that a defendant in custody, after receiving Miranda warnings, “stood mute”—regardless of whether he ‘claimed his privilege” in so many words.’” However, silence of an individual not under arrest is apparently not sufficient. The force of the majority’s decision must therefore lie in the distinction between pre and post arrest conditions. It’s not hard to predict how tasking the public with noting this formal distinction will lead to disproportionate effects. Additionally, the ruling places the burden on the individual, not the government, in conforming conduct accordingly. As Tim Lynch of  the Cato institute described, “the Supreme Court has complicated the law for persons who are the most vulnerable–persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol.”[2]







[1] Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (1955)