This morning the Supreme Court decided a very important criminal procedure case, Salinas v. Texas, by a 5-4 vote. I’m guessing that you haven’t heard of Salinas. And it probably won’t get much attention in the press. But it should: Salinas is likely to have a significant impact on police practices. And it’s a fascinating case for legal nerds, too. So I thought I would explain the issue in Salinas and offer some thoughts on why it matters and what it might mean.

I. A Brief History of Fifth Amendment Protections

To understand Salinas, you need to know a little bit of Fifth Amendment history. Before 1965, the Fifth Amendment right against self-incrimination had been interpreted pretty consistently to provide only a relatively narrow right. Under the pre-1965 cases, the Fifth Amendment only gave you a right to decline to answer the government’s questions when asked a question under the threat of judicially-imposed punishment and when you formally asserted the right. Imagine you’re a witness called to the stand in a criminal case. If you don’t answer the prosecutor’s questions, you can be held in contempt of court and jailed. Under the Fifth Amendment, if you have a reasonable belief that the answers to the prosecutor’s questions will implicate you in a crime, you can “plead the Fifth” and not have to answer the questions. Under that pre-1965 view, all the Fifth Amendment does is let you assert your right ex ante to get out of answering a question when otherwise the law would force you to answer it under threat of legal penalty. (The thinking as to why you need to assert the privilege is that only the suspect knows when his answer would be self-incriminating; the suspect needs to assert the privilege so a judge can step in at that point and assess whether the privilege applies.)

Two cases in the mid-1960s made important cracks in that doctrinal edifice. First, in Griffin v. California, 380 U. S. 609 (1965), the Supreme Court held that the Fifth Amendment did not permit the government to comment on the defendant’s failure to testify at trial. Pre-Griffin, if the defendant chose not to testify, the prosecutor could argue that the defendant’s silence showed his guilt. (After all, an innocent person wrongly charged with a crime surely would want to explain his innocence to the jury, right?) Griffin reasoned that it would gut the Fifth Amendment if the prosecutor could argue that silence was guilt; the defendant would in effect be forced to testify to avoid that adverse inference. So the “spirit” of the Fifth Amendment barred commenting on the failure to testify even though the defendant did not formally plead the Fifth and was not compelled to speak by force of law.

The second case that cut against the traditional understanding of the Fifth Amendment was Miranda v. Arizona, 384 U.S. 436 (1966), just a year after Griffin. Miranda is the famous “right to remain silent” case, and it held that before the police can admit a defendant’s statement during a custodial interrogation, the police must first inform him of his rights and then obtain a waiver of his rights. The reasoning of Miranda was that custodial interrogation was special. When a person was in custody and was questioned by the police, the environment was so coercive that the Court needed a set of special protections (the warnings and waiver) to ensure that the answers to police questions were voluntary and not coerced.

The complex set of rules announced in Miranda was justified as a way of protecting the Fifth Amendment right. But the fit has always been awkward. Indeed, Miranda was actually argued as a Sixth Amendment case, not a Fifth Amendment case; it was a surprise to everyone when the Court announced that the Miranda rules were part of the Fifth Amendment. And the Court has struggled to find the right place for Miranda in constitutional caselaw ever since. Miranda was a strange fit for the Fifth Amendment because it didn’t fit the classic requirements of a Fifth Amendment right. It applied to police interrogation when there was no threat of judicially-enforced punishment, and it didn’t require a defendant to assert his right. To the contrary, the rights automatically existed in custodial interrogation unless they were formally waived. Nonetheless, the Court announced the Miranda rules as a prophylactic set of protections for “real” Fifth Amendment rights (a characterization the Court stayed with in Dickerson v. United States, 530 U.S. 428 (2000)). And in Footnote 37 of Miranda, the Court included dicta extending the Griffin rule to custodial interrogation:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U.S. 609 (1965)

So after 1966, we have essentially two ways of thinking about the Fifth Amendment right against self-incrimination. The first way is the classic pre-1965 approach, in which a defendant must formally plead the Fifth and has a right only when facing the threat of judicially imposed punishment. The second way is the Griffin/Miranda approach, which takes a broader view of the right and considers that would undermine a person’s ability to control when they speak in ways that might incriminate themselves.

II. What Is the Right to Remain Silent?

You can see the tension between these two views if you think carefully about Miranda‘s famous requirement that the police must tell a suspect that he has a right to remain silent. The right to remain silent sounds like a bedrock principle, and everyone knows about it. And the Court was clear that this right was supposed to be a way of expressing the Fifth Amendment privilege. See Miranda, 384 U.S. at 467-68. But it has always been a bit of a puzzle as to exactly what this warning was supposed to mean. What does it mean to say that a person has a “right to remain silent”?

In particular, “right” in what sense? In the narrow sense that the law cannot hold you liable for a crime if you plead the Fifth, as the Fifth Amendment had traditionally been interpreted? Or “right” in the broader sense that your silence can’t be used against you by the prosecution to gain any advantage, which was the gist of Griffin and was extended to interrogations in Miranda? Miranda doesn’t say. It requires the police to tell people that they have a right to remain silent, but it doesn’t tell us what that right means or when it is triggered.

III. Salinas v. Texas

That brings us (finally) to the new case, Salinas v. Texas. Salinas agreed to accompany the police to the stationhouse to be interviewed about a murder. Once there, he answered a lot of the officer’s questions. But then Salinas was asked a particularly incriminating question: Would the shells from his shotgun match the shells found at the murder scene? Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” After a few seconds of silence, the officer moved on to other questions. At trial, the government argued that Salinas had committed the murder based in part on his response to the question about the shotgun shells. The prosecutor argued to the jury that an innocent person would have said, “What are you talking about? I didn’t do that. I wasn’t there.” But Salinas didn’t do that; he remained silent. And that suggested guilt. Notably, Miranda‘s footnote 37 didn’t apply because Salinas was not in “custody” for Miranda purposes. He was at the stationhouse voluntarily, not by force, so Miranda didn’t apply. The question before the Court was whether the government was allowed to argue about the significance of the defendant’s pre-arrest silence to the jury.

The Supreme Court divided 5-4 on the question, with the majority dividing 3-2. The controlling opinion under a Marks analysis is the plurality opinion by Justice Alito joined by Chief Justice Roberts and Justice Kennedy. Justice Alito concluded that it did not violate Salinas’s Fifth Amendment right to comment on his silence because he never formally asserted his Fifth Amendment right. In Alito’s view, the pre-1965 approach to the Fifth Amendment was the standard approach to the Fifth Amendment, and Griffin and Miranda were two exceptions from this norm. Thus the issue was whether pre-Miranda silence should be governed by the usual rule that the defendant must formally assert his Fifth Amendment right to have that right or the Griffin/Miranda rule that he does not need to do so. In the majority’s view, the usual rule applied because Griffin and Miranda dealt only with specific contexts. At trial, the defendant has an absolute right not to testify, which explains Griffin, and the coerceiveness of custodial interrogation “makes his forfeiture of the privilege involuntary,” explaining Miranda. No such special circumstances existed in the non-custodial non-trial interview of Salinas.

According to the plurality, then, the defendant was required to formally assert his Fifth Amendment privilege. When the officer asked Salinas whether the shot gun shells would match those at the crime scene, Salinas shouldn’t have paused and shuffled his feet. Rather, if he wanted to rely on his right to remain silent, he had to say something that clearly asserted his right. The plurality isn’t clear on exactly how clear is clear enough to formally assert a Fifth Amendment right in the informal context of a police interview. I gather something like “I plead the Fifth” or “I assert my right to remain silent” would do it, but the opinion isn’t clear.

Justice Thomas penned a short 2-page concurrence joined by Justice Scalia. Justices Thomas and Scalia think that Griffin was wrongly decided. When a prosecutor comments on a defendant’s failure to speak, Thomas reasoned, the government is not actually forcing him to be a witness against himself. Thus the Fifth Amendment shouldn’t apply. (As an aside, Justices Scalia and Thomas would overturn Miranda entirely.)

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor and Kagan. Justice Breyer’s basic argument uses the basic reasoning of Griffin and Miranda:

To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent. See, e.g., Griffin, supra, at 613; Kassin, Inside Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself ”—very much what the Fifth Amendment forbids.

Under Breyer’s view, commenting on Salinas’s silence violated his Fifth Amendment right because the circumstances “give rise to a reasonable inference that Salinas’ silence derived from an exercise of his Fifth Amendment rights.”

IV. Why Salinas Matters

Salinas resolves a very deep circuit split involving a long-fuzzy area in the law of police investigations. I suspect that its green light to comment on pre-arrest silence impact will have a significant impact. That’s true for a few reasons.

First, it is relatively easy for the government to claim that a suspect’s reaction to an incriminating question suggests guilt — and very hard for a defendant to challenge that characterization. Over the course of a long interview, the investigator might ask dozens or hundreds of incriminating questions. If the case goes to trial, a smart prosecutor will ask the investigator if he thought that any of the ways the defendant reacted to the questions was a non-answer or pause that seemed to reflect an awareness of guilt. If the prosecutor can comment on a non-answer, presumably the prosecutor can also comment on a pause before an answer. The prosecutor will then ask about that during the direct examination, and the investigator will give his view that the defendant paused or looked nervous or declined to answer particular questions. The prosecutor can then focus on that before the jury, and there’s not much a defendant can do in response. Taking the stand would require the defendant to testify and let in adverse facts like prior crimes, which most defendants won’t want to do. So the government’s characterization will be tough to challenge, even if the investigator is being unfair in his characterization of the defendant’s acts.

Second, as a practical matter, it seems unlikely that a person questioned by a police officer outside of custody is going to formally assert his Fifth Amendment right. Most people are not lawyers, and they don’t think in terms of legal formalities. And outside of custody, the police don’t have to give warnings or talk about the law. They don’t have to mention the right to remain silent and ask a suspect to waive it, knowing that the suspect can later change his mind. They don’t need to bring it up at all. And that means that they can construct the conversation in the kind of way that makes it extraordinarily awkward for a person to play lawyer and assert his Fifth Amendment privilege. Of course, a really smart suspect will just say that they’re busy so they don’t have time to talk to the police at all. (“I just can’t schedule you in anytime soon. How is 2017 for you?”) But the suspect who mistakenly thinks he can talk his way out of trouble may be in for a surprise.

V. How Will Salinas Work in Practice?

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be? In Berghuis v. Thompkins, the Supreme Court said that a suspect who has been told about his right to remain silent during questioning needs to unambiguously assert that right for it to trigger the “downstream” Miranda rules that require the police to stop questioning and leave the suspect alone. But at least the suspect who has been told he has a right to silence may remember that right he has been told about and may invoke it. It’s somewhat less clear what will count as a successful invocation under the Fifth Amendment pre-arrest sans Miranda. Pre-arrest, the person has not been told that they have any rights. How clearly do they need to identify them to count?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege. Recall that under the pre-1965 caselaw, a suspect only has a Fifth Amendment right against self-incrimination when 1) he asserts his right formally and 2) a failure to answer would subject him to punishment under the law. A judge then is called in to rule on the assertion, and the judge either rules that the suspect has to answer the question or not. Salinas deals with part (1); it tells us that the Fifth Amendment privilege in the pre-arrest questioning has to be asserted. But I wonder, why does that even matter given that the second requirement won’t be met? And why does it matter when a judge isn’t going to be called on to review the assertion of the privilege and the suspect isn’t going to be compelled to answer the question?

A comparison with Miranda is instructive. The theory of Miranda was that in custodial interrogation, the coercive pressures of interrogation are so great that they’re akin to a threat of legal punishment. The puzzling line from Miranda was this: “As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.” And to deal with the fact that there is no judge present, Miranda had to create a set of rules for what happens when a suspect asserts his right: In lieu of a judge stepping in and evaluating the assertion, the questioning has to stop. Whether you think these Miranda rules are sensible or conjured out of thin air — or both — presumably the same won’t be true outside of custody. And that creates a puzzle. If the defendant doesn’t actually have a Fifth Amendment right not to answer a question because an answer would not be “compelled” as it is understood in Fifth Amendment caselaw, what difference does it make if the defendant asserts his Fifth Amendment privilege? The classic reasoning of the pre-1965 caselaw tells us that the defendant has no Fifth Amendment privilege to assert at that point. What are courts supposed to do when a suspect asserts a privilege he doesn’t actually have? And what are the police supposed to do when that happens?

I can imagine a few different answers to these questions. First, courts might create some sort of Griffin-like rule just for pre-arrest questioning. That is, they might say that the police can’t comment on an assertion of Fifth Amendment privilege in that setting (even though there is no traditional Fifth Amendment privilege to assert) in order to ensure that the Fifth Amendment right is fully respected. Maybe they’ll throw in a bit of Miranda-like reasoning, too, and hold that a formal assertion of the Fifth Amendment right requires the police to stop questioning. Perhaps. But on the other end, the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.