Caseflicks

Supreme Court of the United States • 2013

Salinas v. Texas

133 S. Ct. 2174 | 186 L. Ed. 2d 376 | 2013 U.S. LEXIS 4697 | 570 U.S. 178 | 81 U.S.L.W. 4467 | 24 Fla. L. Weekly Fed. S 294

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Takeaway

In short, a suspect who voluntarily participates in a noncustodial police interview must affirmatively invoke the Fifth Amendment before relying on it to prevent the prosecution from using his silence as evidence.

Background

In 1993, Houston police suspected Genovevo Salinas of two murders and asked him to come voluntarily to the station for questioning. The interview was noncustodial, Salinas was free to leave, and he was not given Miranda warnings. He answered most questions, but when an officer asked whether his shotgun would match shell casings recovered from the murder scene, Salinas fell silent and appeared visibly nervous. He then answered later questions.

Police initially released Salinas, but later obtained evidence that he had confessed to the killings. After Salinas was found living under an assumed name years later, he was prosecuted for murder. At trial, the State introduced his silence and demeanor in response to the shotgun question as evidence of guilt. Salinas was convicted and sentenced to 20 years.

The Texas Court of Appeals and the Texas Court of Criminal Appeals rejected Salinas's Fifth Amendment challenge. They reasoned that his prearrest, pre-Miranda silence was not compelled within the meaning of the Self-Incrimination Clause. The Supreme Court granted review to address disagreement among lower courts about the use of a suspect's assertion of the privilege during a noncustodial police interview.

Issues

Issue #1

Whether the Fifth Amendment barred the prosecution from using Salinas's silence during a voluntary, noncustodial police interview when he did not expressly invoke the privilege against self-incrimination.

Holding

No. Because Salinas did not invoke the Fifth Amendment privilege, the prosecution's use of his silence did not violate the Fifth Amendment.

Reasoning

The plurality began with the general rule that a person seeking the Fifth Amendment's protection must claim the privilege when he relies on it. An express assertion gives the government notice to challenge whether an answer would be incriminating or to offer immunity, and it gives courts a contemporaneous record for assessing the claim. A person cannot ordinarily preserve the privilege merely by remaining silent.

The Court recognized limited exceptions to the invocation requirement. A criminal defendant need not invoke the privilege by taking the stand at his own trial, because he has an absolute constitutional right not to testify. Nor must a witness invoke the privilege when official coercion deprives him of a free choice to answer, deny, or refuse, as in an unwarned custodial interrogation under Miranda or when the government threatens the loss of employment or another benefit.

Neither exception applied here. Salinas voluntarily accompanied officers to the station and was free to leave throughout the interview. Because the questioning was noncustodial and there was no claim that police coercion prevented him from asserting the privilege, he could have told the officers that he was declining to answer on Fifth Amendment grounds.

A suspect's silence, even in response to a question that officers may believe is incriminating, does not itself invoke the privilege. Silence can have many meanings: the person may be thinking, embarrassed, protecting another person, or attempting to devise an explanation. Since Salinas alone knew his reason for not answering, he bore the burden of making a timely claim of privilege.

Issue #2

Whether the Court should create an exception excusing an express invocation when a suspect remains silent in response to a question that police suspect will elicit an incriminating answer.

Holding

No. The combination of silence and an officer's suspicion of incrimination does not excuse the ordinary requirement that the witness invoke the privilege.

Reasoning

The plurality concluded that its precedents foreclosed the proposed exception. Earlier cases required invocation even where a witness remained silent, and they required invocation even where the government had reason to know that an answer might be self-incriminating. Combining those two insufficient circumstances did not justify a new rule.

Berghuis v. Thompkins reinforced that conclusion. There, a suspect's nearly three hours of silence after receiving Miranda warnings did not invoke the right to remain silent. If prolonged silence in that setting was insufficient to put police on notice of an invocation, Salinas's brief silence in a voluntary interview was insufficient as well.

The plurality also rejected practical objections. It reasoned that courts have long applied invocation requirements and that Salinas's alternative would produce difficult disputes about when physical reactions, such as nervousness or gestures, become expressive conduct rather than silence. The Fifth Amendment protects against compelled self-incrimination, not an unqualified right to remain silent for any reason.

Issue #3

Whether the Fifth Amendment would prohibit the prosecution from using a suspect's silence if the suspect had properly invoked the privilege during a noncustodial police interview.

Holding

The Court did not decide that question because Salinas never invoked the privilege.

Reasoning

The Court had granted review to resolve a lower-court division over the admissibility of a defendant's assertion of the privilege in a noncustodial interview. But the plurality treated the threshold failure to invoke as dispositive. It therefore affirmed without deciding what constitutional protection a properly asserted privilege would receive in that setting.

Concurrences

Justice Thomas

Reasoning

Justice Thomas, joined by Justice Scalia, agreed with the judgment but would have resolved the case on a broader ground. In his view, the prosecution could comment on Salinas's precustodial silence even if Salinas had expressly invoked the Fifth Amendment, because such commentary did not compel Salinas to give self-incriminating testimony.

He rejected extending Griffin v. California, which bars prosecutorial comment on a defendant's failure to testify at trial. In Justice Thomas's view, Griffin lacks support in the Fifth Amendment's text, history, and logic: an adverse inference from silence may make silence costly, but it does not literally compel a defendant to become a witness against himself.

Historical practice, he argued, likewise permitted adverse inferences when defendants declined to make statements. Because Griffin was wrongly decided in his view, it should not be expanded from silence at trial to silence during a voluntary interview before custody.

Dissents

Justice Breyer

Reasoning

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, concluded that the Fifth Amendment prohibited the prosecutor from introducing and arguing from Salinas's silence. In the dissent's view, allowing the State to characterize silence as evidence of guilt puts a suspect in the unconstitutional dilemma of either answering a potentially incriminating question or remaining silent and having that silence used against him.

The dissent rejected a rigid express-invocation requirement. It read cases such as Griffin and Miranda to establish that no ritualistic formula is necessary where the circumstances reasonably show that silence is an exercise of the privilege. Express invocation is important in settings where the basis for silence is unclear and the government needs to test the privilege claim or consider immunity, but those considerations did not control this police interrogation.

The circumstances here, Justice Breyer reasoned, plainly connected Salinas's silence to the Fifth Amendment. He was an unrepresented murder suspect questioned at a police station, and he became silent precisely when officers shifted to the highly incriminating question whether his shotgun matched murder-scene shell casings. Those facts gave police fair notice that he was refusing to provide potentially self-incriminating evidence.

The dissent also viewed the plurality's rule as neither practical nor genuinely clear. Ordinary suspects are unlikely to know that they must expressly identify the Fifth Amendment, while courts would still need to decide what words or conduct adequately communicate an invocation. The better inquiry, according to the dissent, is whether the surrounding circumstances fairly support an inference that the person was exercising the privilege.