SCOTUS Fumbles On The Fifth Amendment

Yesterday, the Supreme Court narrowly decided a case on the right against self-incrimination that is likely to do great harm to individual rights.


In addition to yesterday’s decision related to Arizona’s voter registration law, the Supreme Court also handed down a handful of other cases, including one ruling on the Fifth Amendment’s right to remain silent that is causing concern among civil liberties advocates:

The court ruled that a suspect’s failure to answer a police officer’s questions before an arrest may be used against the suspect at trial.

The Supreme Court has long said the Fifth Amendment’s protection against self-incrimination applies after arrest and at trial. But it had never decided, in the words of a 1980 decision, “whether or under what circumstances pre-arrest silence” in the face of questioning by law enforcement personnel is entitled to protection.

The case decided Monday, Salinas v. Texas, No. 12-246, arose from the 1992 murder of two brothers, Juan and Hector Garza, in Houston. Among the evidence the police found were discarded shotgun shells.

The police questioned Genovevo Salinas, who was said to have attended a party at the Garzas’ apartment. Mr. Salinas answered questions for almost an hour but would not say if a shotgun the police had taken from his home would match the recovered shells.

At trial, a prosecutor commented on Mr. Salinas’s silence about the shells. “An innocent person,” the prosecutor told the jury, “is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. He didn’t say, ‘No, it’s not going to match up.'”

Mr. Salinas was convicted and sentenced to 20 years in prison.

SCOTUSBlog’s Lyle Denniston explains further:

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 others 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.

There’s always been something of an oddity about the Supreme Court’s Fifth Amendment reasoning. Miranda v. Arizona, and the cases that followed it, held that a person who is being held in custody must be advised of their Constitutional right to remain silent. However, the plain language of the amendment tells us that the right to remain silent exists regardless of whether or not one has actually been informed of it by a police officer or prosecutor. That’s why someone who is being held in a non-custodial situation (i.e, someone technically not under arrest) always has a legal right to stop asking questions and leave the location where they’re being questioned. Absent probable cause, the police cannot detain him, nor can they force him to continue answering questions. Of course, if someone simply stops answering questions they are free to continue questioning him. However, the general rule has always been that silence is not supposed to be taken as evidence of guilt. It would seem that this is even more true when that silence comes before someone has even been given the Miranda warnings, but the Court seems to have decided exactly the opposite.

Where the Court seems to get things wrong in this case is in centering its decision on the fact that Salinas did not formally invoke his right to remain silent. To be fair, there have been many cases where the question of whether or not a criminal defendant has invoked their rights has been an important issue. In the case of a Defendant in custody, this is an important question between Miranda and its progeny essentially say that once a Defendant in custody invokes,  all questioning must cease and the Defendant must be given access to an attorney. In Salinas’s case, though, while he didn’t formally invoke, he did decline to answer what was quite obviously a potentially incriminating question, and the Court has ruled that his silence in response to that question can be used against him.

Cato’s Tim Lynch points out the problems this creates:

Justice Alito announced today that the main question is again postponed for another day. The Court said Salinas simply remained silent and did not “formally” invoke any constititional right, so prosecutors could offer commentary to the jury. What’s most disturbing about the ruling is its discussion of “burdens.” The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable-persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights.

Orrin Kerr, who has an excellent piece that goes into both the history of Fifth Amendment law and the particulars of the Salinas case up at The Volokh Conspiracy, meanwhile, explains why this decision matters:

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.

In other words, for the vast majority of people who get caught up in police questioning, most of whom are of limited education to begin with and certainly don’t have access to legal counsel and other resources, the Court’s decision in Salinas is a huge loss. These people aren’t necessarily going to know that remaining silent, by itself, isn’t considered sufficient enough to constitute an exercise of their Constitutional rights and that their silence under those circumstances could end up being used against them if they end up being charged and going to trial. That isn’t how the Fifth Amendment is supposed to work at all, and the Court has done significant damage to the right against self-incrimination.

Here’s the opinion:

Salinas v. Texas by dmataconis

FILED UNDER: *FEATURED, Crime, Law and the Courts, Policing, US Politics, , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Rafer Janders says:

    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.

    How “voluntary” was Salinas’ trip to the police station? Did the officers ask him to accompany them, or was it really more of a command (as in “OK, you’re coming with us downtown, get in the car”)?

    As we well know, the police are skilled in pressuring citizens so that it seems that they have no choice and are required to comply.

  2. Ben says:

    @Rafer Janders:

    Indeed. I wonder if this guy knew that what was going on was “voluntary” at all. And there’s no way that he actually knew he had the option to stand up and walk out whenever he wanted. I always laugh whenever the law-n-order crowd brings that up. There’s no way in freaking hell that most people are going to think that after an hour of questioning in a police interrogation room, that they can just get up and leave.

    The fact that the prosecutor actually pulled out the “silence = guilty” argument makes me want to vomit. I can’t believe they’re still allowed to make arguments like that in this day and age. It’s repugnant.

    How is some random dude off the street supposed to know that he has to recite specific words to “invoke” his right to remain silent? And this case didn’t even say what those magic words are. What kind of guidance is this supposed to give people when they are in this sort of situation?

    And that doesn’t even touch on how ridiculously nonsensical it is that you need to affirmatively make a statement in order to invoke your right to remain SILENT.

    I guess the lesson here, is never, EVER, voluntarily do or say anything for a policeman in ANY circumstance.

  3. Sam Malone says:

    I’m not an attorney…but it seems logical that if I am being silent…then I have invoked my right to be…you know…silent.
    Unfortunately this is not the first example of SCOTUS impacting the rights of individuals in recent years…and I’m sure it won’t be the last.

  4. Matt Bernius says:

    Great analysis Doug. Thanks for bringing this case to our attention. After learning about it, I’m frustrated that it hasn’t received more national attention — unless I missed it there was nothing about it on NPR this morning (for example).

  5. gVOR08 says:

    I am invoking my First Amendment right to free speech and will now make a statement critical of a high official in the government. Misquoting Dickens, John Roberts is a ass. Apparently the above preamble is now necessary.

  6. Hal 10000 says:

    There seems to be a catch-22 here. Because if you lie to police (and especially federal investigators), you can be prosecuted for that too. So you don’t have the right to not answer, you don’t have the right to lie. I guess you only have the right to confess.

  7. OzarkHillbilly says:

    So… Once again we have proof that Alito, Kennedy, Roberts, Thomas, and Scalia are wholly sympathetic to police stratagems reminiscent of a certain German police that existed from 1933-45 and whose name began with a “G”…**

    I am shocked, SHOCKED I tell you.

    ** (was I vague enough to avoid the dreaded ‘Godwin’?)(Ahhh, who cares? They remind me of Nazis)

  8. OzarkHillbilly says:

    @Hal 10000:

    I guess you only have the right to confess.

    Well, Duuuuuuuhhhhhhh. What took you so long to figure that out? Scalia told us that a long time ago. 😉

  9. gVOR08 says:

    Some years ago I ducked a speeding ticket. It was one of those rare occasion when I had actually been below the limit. When asked if I knew how fast I was going, I pointedly replied, “Yes, I do.” Beyond that it seemed prudent to dummy up ’til I found out what was going on; which he let slip was that he had a radar reading he liked and he was planning to leave it up and use it all afternoon. He decided I had a “bad attitude”, but he’d let me off with a warning ticket anyway.

    If “invited” for questioning, I might well dummy up ’til I had some idea what was going on. Useful, but sad, to find out I’d need to specifically invoke the Fifth.

    Just an aside, but can you match a cartridge to a shotgun? Firing pin mark? Is that reliable or crime lab BS?

  10. Tyrell says:

    With all of the eavesdropping, monitoring, and other forms of government intrusion, we will become more silent and less connected to other people. I guess I will dig out my old cb radio, fire it up, and use it. I will have to brush up on all of the cb slang and vocab. Maybe that will be safe. Our
    right to remain silent is now “you better remain silent”.

  11. That’s why someone who is being held in a non-custodial situation (i.e, someone technically not under arrest) always has a legal right to stop asking questions and leave the location where they’re being questioned.

    Can a refusal to answer questions now be presented as proof of guilt though? Do you have to explicitly invoke the fifth when refusing to participate in the interview?

  12. wr says:

    It wasn’t “the court” that decided this. It was the five so-called conservatives, the ones who almost inevitably vote to protect government over citizen and corporation against citizen. You know, the ones who were all appointed by politicians Doug voted for.

    You’d think a dedicated libertarian such as himself might finally notice that the party he votes for actually stands dead against almost everything he believes in. But they cut his taxes, so it’s all good.

  13. Woody says:

    Outstanding post, great citations – of course, I fully agree with your opinion.

    I see this is as related to your post last week regarding public confidence in the military and the police – the two American institutions that have a monopoly on force on the general public.

    I shake my head when I see self-proclaimed Originalists triumphantly scuttle defendants’ rights amendments – even middle-school civics students know they were written into the BoR in reaction to the pre-Revolutionary governments’ proclivity for intimidation and arrest.

    To me, the Fourth through Eighth Amendments deserve the same regard as the all-holy Second.

  14. sam says:

    The dissent puts the thing in a nutshell:

    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.

    Surely, damned if you do and damned if you don’t.

  15. ernieyeball says:

    @Woody: “To me, the Fourth through Eighth Amendments deserve the same regard as the all-holy Second.”

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
    USCon Art. V

    Call me crazy (I know I’m askin’ for it) but I thought all the Amendments, by definition, are to be viewed equally.

  16. anjin-san says:

    You’d think a dedicated libertarian such as himself might finally notice that the party he votes for actually stands dead against almost everything he believes in.

    What are you smoking today? I want some…

  17. Ben Wolf says:

    Thomas ans Scalia asserted in the decision that even had Slinas expressely invoked his Fifth Amendment right it would not have been applicable, as he was not being compelled to testify against himself. So it’s questionable that you can say or do anything that cannot be used to help convict you, so long as the police don’t place you under arrest.

    The irony is that you effectively are being compelled to testify against yourself if your response to questioning is anything other than full cooperation.

    There is now a huge incentive for the police to aggresively question targets without arresting them.

  18. @ernieyeball: I believe Woody’s point was that the “constitutional conservatives” seem to only support the Second Amendment of the Constitution.

    Of course, the funniest part is that the same people that celebrated the McDonald v. Chicago decision (incorporation of Second Amendment protections to state action via the Fourteenth Amendment) are also the same ones that reject incorporation of any other Amendment.

  19. ernieyeball says:

    @Timothy Watson: @ernieyeball: I believe Woody’s point was that the “constitutional conservatives” seem to only support the Second Amendment of the Constitution.

    D’oh! Maybe if they all watched the Simpsons we would live in a better world!

  20. OzarkHillbilly says:


    Just an aside, but can you match a cartridge to a shotgun? Firing pin mark? Is that reliable or crime lab BS?

    I don’t know if it is crime lab BS or not but it is the marks left on the shell casings during extraction that are matchable.

  21. HarvardLaw92 says:

    @Stormy Dragon:

    No, you just refuse to participate in the interview. As long as you are not under arrest, you are free to leave whenever you feel like it.

    So just get up and walk out.

  22. HarvardLaw92 says:

    @Ben Wolf:

    The irony is that you effectively are being compelled to testify against yourself if your response to questioning is anything other than full cooperation.

    Disagree. If you aren’t under arrest, you don’t have to answer anything. You don’t have to go to the police station, and you don’t have to stay there in the event that you do stupidly decide to go in the first place.

    People have an overly broad view of the 5th Amendment. It says nothing more than no person shall be compelled in any criminal case to be a witness against himself.

    note: compelled i.e. forced.

    A person being questioned through his own voluntary agreement to submit to questioning isn’t being compelled to do anything, and the 5th Amendment doesn’t protect him from his own stupidity if he incriminates himself – when all he had to do to protect himself was get up and leave.

  23. Rafer Janders says:


    No, you just refuse to participate in the interview. As long as you are not under arrest, you are free to leave whenever you feel like it.

    I suppose you’re always “technically” free to get up and walk out. But are you really? If a guy really tries it, are the police going to let him?

  24. HarvardLaw92 says:

    @Rafer Janders:

    Speaking as a former ADA and AUSA, yes, they will. In the face of an actual expressed intent to leave, they will either arrest (assuming they have a viable basis on which to do so) or step aside.

    Because they know that refusing to do so will 1) torpedo my case in the event that I might have otherwise had one, 2) subject them to a nasty civil suit predicated on unlawful detention and 3) bring the wrath of my office down on them, via their brass, in the aftermath.

    Now, the police don’t have to tell you that you are free to go whenever you feel like it. Indeed, numerous court rulings have established that they can, within certain boundaries, even lie to you in order to obtain a confession, but again, the law doesn’t protect you from your own stupidity or your own ignorance of the law.

  25. Rafer Janders says:


    Speaking as a former ADA and AUSA, yes, they will. In the face of an actual expressed intent to leave, they will either arrest (assuming they have a viable basis on which to do so) or step aside.

    Well, speaking as a former defense attorney with a degree from the same school as you, I’ve seen more than one case where, while the suspect was “technically” free to leave at any time, he was not practically free to do so. Unless you think that, say, a young 18 year old black kid is comfortable telling four to five armed white cops who’ve rolled up to him on the street and have him spread-eagled across their car to step aside and let him go.

  26. HarvardLaw92 says:

    @Rafer Janders:

    That’d be an investigative detention. Assuming they had reasonable suspicion, he’s lawfully being detained in that scenario and, increasingly, the courts are considering that to be custodial. The 4th Amendment would therefore attach to that encounter, and by association Miranda would as well.

    If they just decided to roll the guy, I’m presuming (or at least hoping) that you challenged the encounter as being custodial and got the interaction (and its fruits) ruled inadmissible.

    Beyond that, he still doesn’t have to speak, at all. I just have a hard time believing that anybody is still ignorant about Miranda & what it entails, even if it hasn’t been read to them. You can’t watch TV without hearing it several times a day, for chrissakes. 😀

  27. OzarkHillbilly says:

    @HarvardLaw92: I have to say Harvard, I side with Rafer here. It is damned hard to stand up and say, “No, I won’t go with you.” and even harder to say, “I want to leave now.” It just isn’t that easy in the real world.

    That is why a lawyer I once used had a card with his name and # on one side and a simple statement saying something like this on the other:

    “I am invoking my 5th amendment rights. I want my lawyer. Let me have him or go away.”

    I never had call to use the card (hence it’s being lost lo these many years) but I can assure you, when a cop is up in your face? It would take a lot of balls to lay that card on him. Or as a cop once said to somebody i knew,

    “You have the right to do what I tell you!” That was just before he kneecapped her.

  28. HarvardLaw92 says:


    And what subsequently happened to him?

  29. HarvardLaw92 says:

    I tell people that I like to ask one simple question:

    “Am I free to leave?”

    The answer to that question hems him in. If he says yes, then leave without saying another word. If he says no, then respond with “I want to call my attorney” and then STFU. Not another word. He’s boxed himself into characterizing it as a detention and that puts his entire line of thinking leading up to the encounter in my cross-hairs and under my microscope.

    People are missing the fact that Salinas stipulated that the encounter was non-custodial.

  30. Just Another Ex-Republican says:

    Ignorance of the law is no excuse–but ignorance of one’s Constitutional rights should NOT allow lawyers or anyone else to take advantage of you in court. I can easily believe people aren’t aware of their Miranda rights, especially with this idiotic decision that you have to correctly verbalize them in certain situations.

    Never ever underestimate how uninformed people are outside their areas of expertise. It doesn’t make them stupid, but come on, how many otherwise educated people just “know” to ask “Am I free to leave?” as a way of hemming cops in. Constitutional rights shouldn’t be so flaccid or easily worked around by unscrupulous (and better informed on the intricacies) individuals–and just because someone is a cop or prosecutor or judge or anyone else doesn’t automatically make them scrupulous.

    Terrible, terrible decision.

  31. @HarvardLaw92: And the Right-Wing Biased 5 would have ruled that leaving could be used by the Prosecution as well.

  32. James Joyner says:

    @Rafer Janders: @HarvardLaw92: @HarvardLaw92: Yeah, the problem isn’t simply that a poor black kid is less likely than me to know his rights–which, of course, he is–but that he’s a hell of a lot less likely to feel he can invoke them. Even I’d feel intimidated if surrounded by four menacing cops at night but, under most circumstances, I’d feel perfectly comfortable telling them No. The kid? Not so much.

    Generally speaking, I don’t think it’s reasonable to construct the law as if it were only going to be applied to well educated, upper middle class white guys.

  33. HarvardLaw92 says:

    @James Joyner:

    And that perception would bring us to the standard for determining when an interaction is simply an encounter and when it is an investigative detention – whether a reasonable person would have felt, under the circumstances, that he/she was able to leave.

    In my view, under that standard Salinas was probably a custodial encounter, which is where his counsel erred in stipulating that it wasn’t. He had a decent challenge, but his attorney dropped the ball in going after it from the wrong premise. He foreclosed what in all likelihood would have been a productive course of action in exchange for one that was pretty weak.

  34. Caw Mentor says:

    Think of it the other way. When the police have you for questioning and they read you the miranda warning are they bestowing new rights on you that you didn’t have before? No of course not.
    You have the right to remain silent before and after they read you that warning. Your silence should not be used against you as evidence. I know it’s hard in this case, because we know now that he is the killer and criminal. But think like this, you are innocent, the police show up at your door, they impose themselves into entering your house, even most innocent people would feel a certain obligation to answer their questions. The “ask” you to come down to the station, lets face it you’re not riding there in the front seat of the police car, you can’t get out of the police car on your own. Then they have you locked in an interview room, you can’t leave the room and wander down the hall to the bathroom, you are not free at that moment. You are confined in a room with a professional interrogator. Do you know still you have the right to not go with them? do you know you have the right to not answer their questions? If you don’t answer questions they are now going to take your refusal to answer any of their questions that you are guilty until proven innocent, is that they law system that we want?
    The 5th amendment is there to protect everyone, even those people who don’t know the law, don’t have a good education. Your silence should be your right to not incriminate yourself, not used against you in court to show you are guilty. That’s the original intent of the amendment.

  35. Every time I start thinking Scalia or Thomas get it, we get one of these rulings.

    However, I see the general point in it. If you’re talking, and then you quit talking, the police can make note of when you quit talking. It fits with the earlier ruling that simply not talking wasn’t enough to assert that you were asserting your rights.

    The real answer is that common sense is gone, and the police will use any excuse to score a conviction. Honest citizens and criminals alike must not talk to a policeman EVER.