Prosecutors can use a suspect’s silence during informal police questioning as evidence of guilt at a subsequent trial, the US Supreme Court said on Monday.

In a case with important implications for individuals at the early stages of a police investigation, the high court said that a suspect must verbally invoke his or her Fifth Amendment right to remain silent to prevent police and prosecutors from using any resulting silence and incriminating body language as evidence of guilt during a jury trial.

“The Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified right to remain silent,” Justice Samuel Alito wrote for the court.

“Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it,” Justice Alito added in turning aside an appeal by a defendant convicted of murder in Texas.

The high court split 5 to 4 on the issue, with the court’s five-member conservative wing rejecting a claim to the Fifth Amendment privilege in the case under scrutiny and the four-member liberal wing supporting such a claim.

The issue arose in the case of Genovevo Salinas, who was charged and convicted in the shooting death of two brothers in Texas in 1992.

During the initial stages of the police investigation, detectives conducted an informal interview with Mr. Salinas. He was not under arrest and police had not advised him of his right to remain silent or consult a lawyer.

Salinas readily answered all of the detectives’ questions – except one. After nearly an hour of questions and answers, one of the detectives asked him if the shotgun police had recovered from the Salinas house earlier that day would match the shells recovered at the scene of the murder.

Salinas fell silent. He did not respond. One of the officers would later testify that Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.”

The detective asked some additional questions that Salinas answered. The only question Salinas declined to answer related to whether the shells found at the murder scene would match Salinas’ shotgun.

At his trial, the prosecutor presented testimony from the investigator about how Salinas had answered many questions by the police – but refused to answer one. The prosecutor told the jury in his closing that Salinas’ silence was evidence of the defendant’s guilt.

Salinas was convicted of the double killing and sentenced to 20 years in prison.

On appeal, his lawyer challenged the use of Salinas’ silence as evidence against him. The lawyer argued that it violated the Fifth Amendment privilege against self incrimination.

The Texas Court of Criminal Appeals disagreed and upheld the conviction.

In affirming the Texas court, the Supreme Court said on Monday that Salinas’ Fifth Amendment claim “fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s questions.”

In effect, the court said Salinas could not take advantage of his right to remain silent by merely remaining silent.

In a dissent, Justice Stephen Breyer and his three colleagues offered a sharply different view of the constitutional protections involved.

“The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming a witness against himself,” Justice Breyer wrote.

“I would hold that Salinas need not have expressly invoked the Fifth Amendment,” Breyer said. “The context was that of a criminal investigation. … And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.”

Breyer added: “These circumstances give rise to a reasonable inference that Salinas’ silence derived from an exercise of his Fifth Amendment rights.”

Two conservative justices would go even further than the plurality decision authored by Justice Alito.

In an opinion concurring with the judgment, Justices Clarence Thomas and Antonin Scalia said that even if Salinas had invoked his Fifth Amendment right to silence the prosecutor’s comments would still be permissible at his trial because they did not compel Salinas to give self-incriminating testimony.

Legal analysts offered a mixed reaction to the court’s decision.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, praised the majority justices for rejecting an attempt to “expand the already bloated restrictions on police questioning and its use in evidence.”

He added: “This evidence is clearly admissible under the Fifth Amendment as enacted and originally understood. In their push to expand the Fifth Amendment privilege far beyond its common law scope, the four dissenting justices consider only the interests of the murderer, barely mention the victims, and give no weight to the need to punish criminals and put them safely behind bars.”

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John Whitehead, president of the Rutherford Institute, was critical of the opinion. “What today’s ruling by the Supreme Court says, essentially, is that citizens had better know what their rights are and understand when those rights are being violated, because the government is no longer going to be held responsible for informing you of those rights before violating them,” he said.

The case was Salinas v. Texas (12-246).