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Speaking to remain silent: The issue with Salinas v. Texas

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Attorney Jason Chan

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The United States Supreme Court has just determined: “you must speak if you want to remain silent.”  In a 5-4 decision in Salinas v. Texas, Justice Samuel Alito wrote that a suspect must verbally invoke his Fifth Amendment right to remain silent.

What Does The 5th Amendment Say?

The best-known clause in the Fifth Amendment of the Bill of Rights provides: “No person … shall be compelled in a criminal case to be a witness against himself.” This amendment protects criminal suspects from forced self-incrimination. “Pleading the fifth” should not be considered a sign of guilt and prosecutors generally may not enter evidence of a suspect’s remaining silent as an indication of guilt.

The 5th amendment comes into play in many stages of a criminal investigation and is designed to protect suspects from abusive police interrogation techniques.

The Fifth Amendment Must Be Expressly Invoked

How the “right to remain silent” can be invoked was a critical issue in Salinas v. Texas.   In this Texas murder case, Genovevo Salinas, was detained and informally interviewed by police.  However, because he wasn’t under arrest, detectives didn’t read Salinas his Miranda Rights.  Miranda Rights notify suspects in custody of their 5th amendment right to remain silent and 6th amendment right to counsel.

After an hour of questioning, police asked Salinas on whether the shells recovered from the murder scene would have matched a shotgun they found at his house.  Although he had answered all of the police’s other questions, Salinas became silent after this one.  He looked down, shuffled his feet and refused to answer.  At trial, the prosecutor entered evidence that this was the only question Salinas didn’t answer and told the jury that his “silence should be considered evidence of his guilt.”  Following the trial, the jury convicted Salinas of double murder and he was sentenced to 20 years in prison.

On appeal, Salinas’ attorney argued that the testimony concerning Salinas’ silence violated his 5th amendment rights.  The Texas Court of Appeals disagreed, ruling that Salinas would have had to expressly invoke his 5th amendment rights to keep this testimony out.  Remaining silent wasn’t enough.

In a decision issued earlier, this month the Supreme Court agreed with the ruling.  Writing for the majority, Justice Samuel Alito noted: “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.”

However, the decision wasn’t unanimous.  Justice Stephen Breyer was joined in his dissent by three other justices, and noted:

The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence …I would hold that Salinas need not have expressly invoked the Fifth Amendment … 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… These circumstances give rise to a reasonable inference that Salinas’ silence derived from an exercise of his Fifth Amendment rights.

Whether this case will be challenged in the future remains to be seen.  But for now, criminal defendants wishing to remain silent must first speak up.


Supreme Court: For right to remain silent, a suspect must speak, Christian Science Monitor, June 17, 2013

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