In the flurry of high-profile Supreme Court decisions in the month of June – DOMA, Prop 8, adoption rights; voting rights – another Court decision was handed down that sparked little fanfare but could have significant impact on any American in a position to “remain silent.” In a ruling on June 17th in a case called Salinas v. Texas, it was decided that simply remaining silent as a suspect or witness does not protect one from self-incrimination; in fact, in order to invoke that protection, one must actually say out loud “I’m invoking my right to remain silent”… even if Miranda rights are not read because one has not actually been arrested.

The case in question reaches back to 1993, when police in Houston were questioning Genovevo Salinas about the murder of two brothers. The two men had been shot, shell casings were found at the scene, and Salinas was brought in for questioning. He was not under arrest so his Miranda rights were not read and he was amenable, at the time, to police inspecting his shotgun. That was when his fortunes took a turn. From Salon:

When police asked if the shells would match his shotgun, Salinas did not answer the question. He stayed silent, looked down at the floor, shuffled his feet and bit his bottom lip. Salinas was later arrested on an unrelated traffic warrant, at which time police decided there was enough evidence to charge him with the murders. Salinas did not testify at the trial, but his reaction to police questioning — the fidgeting, lip-biting, etc. — was used as evidence. In other words, Salinas’ silence was used against him, a violation of his Fifth Amendment rights, or so he thought. [Emphasis added.]

Even with his silence, he was convicted of murder and given a 20-year sentence. It was during his appeal that the point was made that his silence, and the way his silence was manifested (the fidgeting, lip biting, etc.), was used against him in the trial, violating his constitutional rights per the Fifth Amendment. His appeal was denied, driving the case to the Supreme Court, where the 5-4 decision split, as usual, along ideological lines, was quietly made on June 17th that since Salinas had not been under arrest at the time of his “fidgety” silence, and so was not read his Miranda rights, as well as the fact that he never came right out and stated aloud – “I’m invoking my right to remain silent” – the court was not in violation of his rights. From the ruling:

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. (a) To prevent the privilege against self-incrimination from shield- ing information not properly within its scope, a witness who “‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it. [Emphasis added.]

What is notable about the ruling is that Salinas was not a suspect at the time of his silence; he was merely a witness. Which means the ruling, in fact, becomes a warning to any person who might find themselves in the position of answering police questions as a witness, and, therefore, is not read Miranda rights: you have no Fifth Amendment protection unless you verbally demand it.

Some legal scholars find the ruling not only confusing but potentially punitive to those who may not be aware of the potential implications. Erwin Chemerinsky, dean of First Amendment law at the University of California, Irvine School of Law, wrote a piece in the ABA Journal, Silence Is Not Golden, Supreme Court Says, explaining that the new ruling puts the average person at a distinct disadvantage, as the logic demanded by the SCOTUS decision – speak up if you want to remain silent – is not necessarily known or understood:

The case is troubling because it is so divorced from reality. Most people don’t know that they have the right to remain silent when questioned by police during an investigation. And certainly most are unlikely to know that even if they have such a right, they must explicitly say, “I wish to invoke my right to remain silent.” Although the plurality rejects that there are any specific magic words that must be uttered, it seems fairly close to that because the suspect must unambiguously and expressly invoke the right to remain silent. There is a profound irony to the plurality’s approach: exercising the right to remain silent by being silent is not sufficient to invoke that right. A defendant must speak in order to claim that right and likely must do so with exactly the type of “ritualistic formula” that the court has previously rejected. Constitutional protections should not be just for those who have legal training and know what they need to say to the police to invoke their rights. From a common sense perspective, Salinas was penalized for exercising his constitutional right to remain silent in the face of police questioning. This should not be tolerated under the Fifth Amendment.

Defense attorneys, therefore, must not only be well aware of the law themselves, they must specifically and clearly advise their clients to unequivocally demand their right to silence with or without Miranda rights being read. But what of the unwitting witness who hasn’t “lawyered up” because he or she is not a suspect, but simply being asked questions by the police or other law enforcement? Clearly in the case of Genovevo Salinas, the nervous, lip-biting silence elicited by police questioning became evidence that put him away for 20 years. The message is clear, whether guilty or not guilty, whether a suspect or just a witness: don’t just BE silent; state your silence, demand your right to silence, speak up loudly about your silence.

Because to simply be silent has just been determined to be no protection at all.