On Monday, June 17, 2013, the US Supreme Court, in a 5-4 decision, ruled that a suspect’s failure to answer a police officer’s questions before an arrest may be used against him at trial. In other words if you are not under arrest you do not have the right to remain silent. The US Supreme Court has traditionally held that the 5th Amendment’s protection against self-crimination applies after arrest and at trial. The Supreme Court never has decided whether or under what circumstances pre-arrest silence in the face of questioning by law enforcement personnel is entitled to protection. Until now!
In Salinas v. Texas the police questioned Genovevo Salinas regarding attending a party at the apartment of Juan and Hector Garza. The Garza brothers were murdered at the party. Salinas answered police questions for over 40 minutes but refused to answer questions about a shotgun seized from Salinas’ home. At trial the prosecutor commented about Salinas’s silence. The prosecutor said to the jury “an innocent person is going to say what are you talking about? I didn’t do that. I wasn’t there! He didn’t respond.” Salina was convicted and sentenced to 20 years in prison.
Justices Alito, Roberts and Kennedy said Salinas had to expressly invoke his right to remain silent in order to benefit from it. Justice Thomas and Scalia said Salinas’ 5th Amendment claim would fail even if Salinas specifically invoked the privileged. Justice Breyer, Ginsburg, Sotomayor and Kagen recognized that Salinas was between a rock and a hard place. If he spoke he would give evidence against himself and if he refused to speak the government would benefit from his silence. According to the minority, allowing Texas to comment on his silence put the defense in an impossible predicament.