Analysis

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial. If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

The Court had taken on the case of Salinas v. Texas to decide whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt. But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply. Prosecutors’ use of the silence is then permitted, it ruled.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote. The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Justice Alito’s opinion had only the support of two other members of the Court — Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy. Justice Clarence Thomas, in a separate opinion joined by Justice Antonin Scalia, would have answered the constitutional question that the Court had agreed to hear in this case, and declare that prosecutors could have used the suspect’s silence against him at the trial even if he had specifically claimed a Fifth Amendment right.

The Alito opinion, though, did control the outcome of the case, rejecting the constitutional challenge to the murder conviction of a Houston man, Genovevo Salinas. He had voluntarily gone to a police station with officers to talk about the murder of two brothers in 1992. He was not under arrest, and was not in custody, so he had no right to “Miranda warnings” telling him that he had a right to silence.

He answered almost all of the officers’ questions, but simply sat silent when the officers asked him if shotgun casings found at the scene would match his gun. He acted very nervous in response, but said nothing. Prosecutors used the fact that he said nothing to help convince the jury that he was guilty. He was convicted and is serving a twenty-year sentence.

The Court rejected the argument by Salinas’s attorney that, since he was not in custody at the time and had not been given warnings about his rights, that he did not have to explicitly claim the protection of the Fifth Amendment when he did not want to answer the police questions about the shotgun casings. The Court had previously said, in a number of other contexts, that one had to invoke the right for it to take effect, but it had never done so in the setting of a voluntary encounter of an individual with officers at a police station.

The Alito opinion said that there was no formal way an individual had to use to invoke his Fifth Amendment right, and concluded that it has not been hard for courts to figure out when that right has, in fact, been invoked.

Justice Stephen G. Breyer wrote the dissenting opinion, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They would have ruled that courts should examine all of the specific circumstances of an individual’s encounter with police to decide whether, in fact, that person’s silence was an attempt to claim the Fifth Amendment right.

This decision, in plain English:

The Constitution’s Fifth Amendment gives an individual suspected of crime a right not to be forced, by police or other government officials, into giving up evidence that would show he or she was guilty of a crime. The Court had ruled previously, in the famous case of Miranda v. Arizona in 1966, that an individual who was being held by police and could not leave the police station had to be told of a right to remain silent.

But the new case before the Court on Monday did not involve an individual who was being held against his will by police officers. The individual, Genevevo Salinas of Houston, had voluntarily gone to a police station when officers asked him to accompany them to talk about the murder of two men. So, in that situation, he was not entitled to be told about his right to remain silent under the Fifth Amendment.

He answered most of the officers’ questions, but simply remained silent when they asked him whether shotgun casings found at the scene of the murders would match his gun. He shifted his feet, and otherwise acted nervously, but did not say anything. Later, at his trial, prosecutors told jurors that his silence in the face of that question showed that he was guilty, that he knew that the shotgun used to kill the victims was his.

His lawyer wanted the Supreme Court to rule that the simple fact of silence during police questioning, when an individual was not under arrest, could not be used against that person at a criminal trial. The Court did not rule on that issue. Instead, it said that Salinas had no complaint about the use of his silence, because in order to claim the Fifth Amendment right to say nothing that might be damaging, he had to explicitly say something that showed his silence was a claim of that right. Since he did not do so, the Amendment did not protect him, according to the decision.

Recommended Citation: Lyle Denniston, Opinion recap: If you want to claim the Fifth . . ., SCOTUSblog (Jun. 17, 2013, 5:42 PM), https://www.scotusblog.com/2013/06/opinion-recap-if-you-want-to-claim-the-fifth/