In Salinas v. Texas, 570 U.S. __ (June 17, 2013), the U.S. Supreme Court ruled that the state may use a person’s silence in the face of police questioning against him if: (1) the questioning takes place while the person is not in police custody and (2) the person does not expressly invoke his or her fifth amendment privilege against self-incrimination. Salinas, himself, was questioned about a shotgun murder. He voluntarily surrendered his shotgun to police and went to the police station to answer questions. He was not in custody when he was questioned and no Miranda warnings were read to him. Although he answered most of the questions police asked, when they asked him if his shotgun would match the shell casings left behind at the scene of the murder he did not answer, and he showed signs of stress and nervousness. Ultimately, Salinas was charged and tried for the murder. At his trial, the prosecutor specifically referred to his refusal to answer the question about the shotgun and argued that his silence in the face of that question, along with his physical reaction to it, was evidence of his guilt. Salinas objected, claiming that his silence reflected his exercise of his Fifth Amendment privilege and that his Fifth Amendment privilege was violated when the prosecutor argued that his silence was a sign of guilt.
The U.S. Supreme Court chose to examine the case to answer a question that had split the lower courts: whether the prosecution may use, in its case in chief, a defendant’s assertion of his privilege against self-incrimination made during non-custodial police questioning. In the end, the Supreme Court failed to resolve this question. Instead, three Justices decided that Salinas’ Fifth Amendment claim failed because he had not expressly asserted his privilege against self-incrimination. These three justices pointed out that the Fifth Amendment does not provide an unqualified right to remain silent, but instead provides that “[n]o person shall be…compelled in any criminal case to be a witness against himself.” Because there are a number of reasons why a person might choose to be silent in the face of police questioning, in order to invoke the Fifth Amendment privilege against self-incrimination, it is necessary for a person to specifically assert the privilege. Two concurring Justices decided that the privilege against self-incrimination was not even implicated by Salinas’ questioning, because the prosecutor’s comments on his silence had not compelled him to give self-incriminating testimony at trial.
The rule that emerges from the Salinas opinion is that a person who is questioned by police in a non-custodial setting does not assert his or her Fifth Amendment privilege against self-incrimination simply by falling silent as to some or all of the questions. For a person to have any chance of preventing the State from confronting him at trial with his silence in the face of non-custodial questioning, he must in some way expressly state his intention to invoke his Fifth Amendment privilege. In light of Salinas, police can be expected to hone tactics designed to confront suspects questioned in non-custodial settings with provocative, accusatory questions, to set the stage for prosecutors to argue that no innocent person would possibly have failed to utter a denial. And as soon as the person does utter a denial (unless the interview is recorded) he or she will instantly place himself at the mercy of the interviewing officer’s version of what exactly was stated. The Salinas three-judge plurality has at least left open the possibility that a person who expressly invokes his Fifth Amendment privilege during non-custodial questioning will be shielded from the use against him at trial of his silence during questioning. On the other hand, it is entirely possible that when the Court reaches that precise question it will find that the Fifth Amendment privilege provides no protection in this setting. In the meantime, anyone who intends not to respond to police questioning in a non-custodial setting had better be prepared to expressly state that he is invoking his Fifth Amendment privilege. Otherwise, he can fully expect his silence in the face of police questioning to be used against him at trial as self-damning evidence of guilt.
SALINAS V. TEXAS AND THE FIFTH AMENDMENT.