Salinas v. Texas

570 U.S. _

Case Year: 2013

Case Ruling: 5-4, Affirmed

Opinion Justice: Alito

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Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Kenney, Roberts, Scalia, Thomas


1st Concurring Opinion

Author: Thomas


1st Dissenting Opinion

Author: Breyer

Joiner(s): Ginsburg, Kagan, Sotomayor

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In December 1992, two brothers were shot and killed in their home in Houston, Texas. No one witnessed the murders, but a neighbor heard gunshots and saw someone leave the house and drive away in a dark-colored car. Also, police found six shotgun shell casings at the scene of the crime.

Police eventually interviewed Genovevo Salinas, a guest at a party the victims hosted the night before they were killed. When they went to his home, they spotted a dark blue car in the driveway. Police then asked Salinas to turn over his shotgun for ballistics testing and to accompany them to the station for questioning to “clear him as [a] suspect.” Salinas agreed to both requests.

Both Salinas and the government case agree that the hour-long interview was noncustodial (that is, Salinas was free to leave) and that Salinas was not read Miranda warnings. For most of the interview, Salinas answered the officer’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” he declined to answer. Instead, he “[l]ooked 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 moments of silence the officer asked more questions, which Salinas answered.

When the interview was over, police arrested Salinas on outstanding traffic warrants. Prosecutors soon concluded that there was not enough evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard Salinas confess to the killings. With this additional evidence in hand, prosecutors decided to charge Salinas, but by this time he had fled. In 2007, police found Salinas living in the Houston area under an assumed name.

At his trial, and over his objection, the prosecutor argued that Salinas’s reaction to the officer’s question during the 1993 interview suggested that he was guilty of the murders. Specifically, at closing argument, the prosecutor told the jury that “ ‘[a]n innocent person’ ” would have said, “ ‘What are you talking about? I didn’t do that. I wasn’t there.’ ” But Salinas, the prosecutor said, “ ‘didn’t respond that way.’ ” Rather, “ ‘[h]e wouldn’t answer that question.’ ”

The jury found Salinas guilty, and he received a 20-year sentence. In his appeal, Salinas argued that prosecutors’ use of his silence as part of their case violated the Fifth Amendment. After the state courts rejected his claim, Salinas brought his case to the Supreme Court.



We granted certiorari to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.

The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony.” To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it.

That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, or cure any potential self-incrimination through a grant of immunity. The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer. In these ways, insisting that witnesses expressly invoke the privilege “assures that the Government obtains all the information to which it is entitled.”

We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. California (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a criminal defendant has an “absolute right not to testify.” . . .

Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege. . . .

For similar reasons, we have held that threats to withdraw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. The principle that unites all [the] cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny, or to refuse to answer.’ ”

Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and “was free to leave at any time during the interview.” That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposition that “[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment.” The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.

Petitioner urges us to adopt a third exception to the invocation requirement for cases in which a witness stands mute and thereby declines to give an answer that officials suspect would be incriminating. Our cases all but foreclose such an exception, which would needlessly burden the Government’s interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner’s invitation to craft a new exception to the “general rule” that a witness must assert the privilege to subsequently benefit from it.

Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In Roberts v. United States,for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that “if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate.” . . .

We have also repeatedly held that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. Thus, in Murphy we held that the defendant’s self-incriminating answers to his probation officer were properly admitted at trial because he failed to invoke the privilege. . . .

Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, petitioner would have us hold that although neither a witness’ silence nor official suspicions are enough to excuse the express invocation requirement, the invocation requirement does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we conclude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt . . .

In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. But whatever the most probable explanation, such silence is “insolubly ambiguous.” To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to make a timely assertion of the privilege.” . . .

Finally, we are not persuaded by petitioner’s arguments that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will “unleash complicated and persistent litigation” over what a suspect must say to invoke the privilege, but our cases have long required that a witness assert the privilege to subsequently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for suspects who wish to assert their rights and cut off police questioning during custodial interviews.

Notably, petitioner’s approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing officer asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At precisely what point such reactions transform “silence” into expressive conduct would be a difficult and recurring question that our decision allows us to avoid . . .

                         ∗ ∗ ∗

Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed.

It is so ordered.


We granted certiorari to decide whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant’s pre-custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege. I think there is a simpler way to resolve this case. In my view, Salinas’ claim would fail even if he had invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.

In Griffin v. California (1965), this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify. The Court reasoned that such comments, and any adverse inferences drawn from them, are a “penalty” imposed on the defendant’s exercise of his Fifth Amendment privilege. Ibid. Salinas argues that we should extend Griffin’s no-adverse-inference rule to a defendant’s silence during a precustodial interview. I have previously explained that the Court’s decision in Griffin “lacks foundation in the Constitution’s text, history, or logic” and should not be extended. I adhere to that view today.

Griffin is impossible to square with the text of the Fifth Amendment, which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” A defendant is not “compelled . . . to be a witness against himself” simply because a jury has been told that it may draw an adverse inference from his silence . . .

Nor does the history of the Fifth Amendment support Griffin. At the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so. GivenGriffin’s indefensible foundation, I would not extend it to a defendant’s silence during a precustodial interview.


The question before us is whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting upon the evidence about Salinas’ silence. The plurality believes that the Amendment does not bar the evidence and comments because Salinas “did not expressly invoke the privilege against self-incrimination” when he fell silent during the questioning at the police station. But, in my view, that conclusion is inconsistent with this Court’s case law and its underlying practical rationale.

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.” This Court has specified that “a rule of evidence” permitting “commen[t] . . . by counsel” in a criminal case upon a defendant’s failure to testify “violates the Fifth Amendment.”

Particularly in the context of police interrogation, a contrary rule would undermine the basic protection that the Fifth Amendment provides. 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. 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. And that is similarly so whether the questioned individual, as part of his decision to remain silent, invokes the Fifth Amendment explicitly or implicitly, through words, through deeds, or through reference to surrounding circumstances.

It is consequently not surprising that this Court, more than half a century ago, explained that “no ritualistic formula is necessary in order to invoke the privilege.” Thus, a prosecutor may not comment on a defendant’s failure to testify at trial—even if neither the defendant nor anyone else ever mentions a Fifth Amendment right not to do so. Circumstances, not a defendant’s statement, tie the defendant’s silence to the right. Similarly, a prosecutor may not comment on the fact that a defendant in custody, after receiving Miranda warnings, “stood mute”—regardless of whether he “claimed his privilege” in so many words. Again, it is not any explicit statement but, instead, the defendant’s deeds (silence) and circumstances (receipt of the warnings) that tie together silence and constitutional right. Most lower courts have so construed the law, even where the defendant, having received Miranda warnings, answers some questions while remaining silent as to others . . .

Much depends on the circumstances of the particular case, the most important circumstances being: (1) whether one can fairly infer that the individual being questioned is invoking the Amendment’s protection; (2) if that is unclear, whether it is particularly important for the questioner to know whether the individual is doing so; and (3) even if it is, whether, in any event, there is a good reason for excusing the individual from referring to the Fifth Amendment, such as inherent penalization simply by answering.

Applying these principles to the present case, I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. 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. This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime. The nature of the surroundings, the switch of topic, the particular question—all suggested that the right we have and generally know we have was at issue at the critical moment here. Salinas, not being represented by counsel, would not likely have used the precise words “Fifth Amendment” to invoke his rights because he would not likely have been aware of technical legal requirements, such as a need to identify the Fifth Amendment by name.

At the same time, the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament . . . of not forcing Salinas to choose between incrimination through speech and incrimination through silence. That need is also supported by the absence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination or whether to grant immunity. Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of the privilege.” That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor.

I recognize that other cases may arise where facts and circumstances surrounding an individual’s silence present a closer question. The critical question—whether those circumstances give rise to a fair inference that the silence rests on the Fifth Amendment—will not always prove easy to administer. But that consideration does not support the plurality’s rule-based approach here, for the administrative problems accompanying the plurality’s approach are even worse.

The plurality says that a suspect must “expressly invoke the privilege against self-incrimination.” But does it really mean that the suspect must use the exact words “Fifth Amendment”? How can an individual who is not a lawyer know that these particular words are legally magic?...

The basic problem for the plurality is that an effort to have a simple, clear “explicit statement” rule poses a serious obstacle to those who, like Salinas, seek to assert their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail . . .

Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today’s case is clearly: yes.

For these reasons, I believe that the Fifth Amendment prohibits a prosecutor from commenting on Salinas’s silence. I respectfully dissent from the Court’s contrary conclusion.