A Sad Day For The Fifth Amendment: Supreme Court Rules On Salinas v. Texas

Filed under: Criminal Law, News by Contributor @ June 20, 2013

Yesterday was a sad day for the Fifth Amendment when the United States Supreme Court issued its decision on Salinas v. Texas. In Salinas, the court sought to answer the question: can the prosecution use a person’s silence against him when he refuses to answer questions during pre-custodial questioning without expressly invoking his Fifth Amendment right against self-incrimination? In a 5-4 decision, the Court ruled that the prosecution can use this silence against someone. Justice Alito wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Scalia. Justice Thomas wrote a concurring opinion with which Justice Scalia joined. Justice Breyer wrote the dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Kagan.

We have all heard the Miranda warnings on TV and movies many times: “you have the right to remain silent, anything you say can and will be used against you”, etc. While it may seem that these rights are absolute and protect us from the government wrongfully exerting its power, it is important to remember that Miranda warnings must only be read and applied before custodial police questioning. That is, routine questioning of a person who is not under arrest or otherwise in police custody does not fall under the protection of Miranda right. This presents a tricky proposition for courts across the country…What rights are these people afforded?

In 1993, Genovevo Salinas was brought in to a police station for questioning about a 1992 double murder and “to take photographs and clear him as [a] suspect”. Salinas was fully aware that he was not under arrest or in custody and was free to leave at any time. The victims were killed with a shotgun and the shotgun shells used in the murder were recovered at the scene. Salinas had been cooperative with the police and answered their questions until they asked him if his shotgun “would match the shells recovered at the scene of the murder.” When asked that, Salinas fell silent. Much like the concept of “consciousness of guilt” in Pennsylvania, the jury heard about Salinas’ silence and how it was indicative of his guilt. The jury found Salinas guilty of the murders and he was sentenced to 20 years in prison.

Salinas appealed on the grounds that his Fifth Amendment right against self-incrimination was violated when the jury heard about his silence and how it was indicative of his guilt. Both the Court of Appeals of Texas and the Texas Court of Criminal Appeals affirmed the trial court, holding that Salinas’ silence was not “compelled” and that the Fifth Amendment was not applicable. The United States Supreme Court granted certiorari.

In its decision, the Supreme Court held that our Fifth Amendment right is not absolute. Specifically, the Court held that a person who is not in custody must explicitly invoke his right to remain silent before it takes effect (it is quite ironic that in order to remain silent, one must break his silence, but that is beside the point). Otherwise, his silence may be used as evidence of his guilt. But once a person is arrested or in formal custody, his Fifth Amendment right automatically takes effect. Justices Thomas and Scalia concurred in the outcome only, opining that even if Salinas had expressly invoked his right to remain silent, the prosecution still could have used it against him, as in no way was he forced to give self-incriminating testimony.

The dissent argued what is immediately apparent in this case: There is no reason that a person should have to “play lawyer” and know exactly how and when to invoke his own rights granted to him by our forefathers in the Bill of Rights. Barring extraordinary circumstances, these rights should be automatic and absolute. The worst part is, the people who are most likely to be negatively affected by this ruling are the same people who are most likely to be answering police questions about a crime to begin with: people who are uneducated, illiterate, poor, and/or intoxicated. These people will likely not know that they have to expressly invoke their right to silence, and may instead believe that their right is to remain silent. Unfortunately, these uneducated, illiterate, poor, and/or intoxicated people are also statistically the most likely to be engaged in criminal behavior in the first place. The majority’s decision on this is a remarkably unsound one that offends the very essence of the Constitution, the Bill of Rights, and our rights as citizens. Let us know your thoughts in the comments.


  1. Opens up new bumper sticker market: REMAIN SILENT or INVOKE YOUR 5th … guess I’ll consult my attorney for best language ideas
    Also brings up the question: is agreeing to cooperate and answer all questions in the presence of your attorney the best way to skirt the issue entirely?

  2. It is always a good idea to ask to speak to your attorney when the police want to talk with you. Asking to speak with your attorney actually provides you with stronger protections than invoking your right to remain silent. Just politely and calmly stick to your guns in making the request. If the request is not honored then you should ask to document it but say nothing further until advised by your attorney. There are many situations where it is a good idea to speak with police, and we do that sometimes, but it should never be done without first speaking with an attorney. We’ve seen countless cases lost because of something that someone said to the police before coming to us.

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