SCOTUS Approves Use of Pre-Miranda Silence as Evidence of Guilt

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Learn more about the Salinas v. Texas ruling and how it could affect cases in Washington.

jail cellOn June 17, 2013, the Supreme Court of the United States continued its stream of criminal procedure holdings, this time “holding” that the prosecutor’s use of a defendant’s pre-Miranda silence as evidence of guilt does not violate the defendant’s Fifth Amendment privilege against self-incrimination where the defendant did not expressly invoke that privilege. Salinas v. Texas, No. 12-246, 2013 WL 2922119 (U.S. June 17, 2013). The reason for the quotation marks around the word “holding” is the Court’s fractured 3-2-4 opinion, which I analyze in detail below.

Salinas v. Texas: Facts

Police visited Mr. Salinas at his home in connection with a double homicide investigation. He agreed to accompany police back to the station for questioning voluntarily. During the interview, Mr. Salinas was generally forthcoming and answered most questions. However, when specifically asked whether his shotgun would match the shells recovered at the scene of the murder, he remained silent and became fidgety. The interview then continued with other questions, which Mr. Salinas answered. At trial, the prosecutor argued that Mr. Salinas’s silence indicated guilt, and the jury convicted. Miranda was not at issue due to the voluntary nature of the interview.

Salinas v. Texas: Issue

The sole question is whether the Fifth Amendment’s privilege against self-incrimination bars the prosecutor from using Mr. Salinas’s pre-Miranda, pre-arrest silence as evidence of guilt.

Majority Opinion

Justices Alito, Roberts (Chief), and Kennedy answered “no” for one reason. Primarily, the Fifth Amendment privilege extends only to those who unambiguously invoke it. Supreme Court precedent dictates that a person does not invoke the privilege by remaining silent. Rather, some express and unambiguous manifestation must trigger the Fifth Amendment’s cloak of privilege. This is so because a person may remain silent for reasons other than self-incrimination, such as the potential incrimination of others. Since the Fifth Amendment applies only to self-incrimination, remaining silent to protect others would not come within the Fifth Amendment’s privilege. Thus, the suspect must place the government on notice that the silence is privileged by expressly invoking the Fifth, although the Court made it clear that there is no “magic language.”

Concurring Opinion

Justices Scalia and Thomas agreed in the judgment (affirming conviction), but for a different reason. They believe that the Fifth Amendment does not prevent the prosecutor from arguing that any silence is tantamount to guilt, even when a defendant declines to testify in his or her own trial. They would rather overrule Griffin v. California, 380 U.S. 609 (1965), which holds that a judge or prosecutor may not comment on a defendant’s failure to testify. Thus, Mr. Salinas’s claim would fail even if he had expressly invoked the Fifth.


Writing for the dissent, Justice Breyer would hold that Mr. Salinas did not need to invoke the Fifth because the circumstances gave rise to a reasonable inference that his silence was an attempt to invoke the Fifth. The interview was done in a police station, and the police had informed him that he was a suspect. Salinas was likely relying on the Fifth, but would not have known to reference the Amendment by name because he would not have been aware of such legal technical requirements. The plurality’s opinion essentially creates a situation where suspects are faced with a choice to incriminate themselves by speaking or incriminate themselves through silence. Damned if you do, damned if you don’t.

It’s important to note here that, although Mr. Salinas’s conviction was affirmed 5-4, there are more justices signing on to the dissent than there are to either of the other opinions. Thus, the precedential value of this opinion is arguable.

Washington Law

The Washington Constitution has its own self-incrimination section in Article I, Section 9. However, to date, Washington courts have largely applied federal Fifth Amendment jurisprudence and have squared the state constitution’s counterpart with the Fifth Amendment. In State v. Easter, 130 Wn.2d 228, 922 P.2d 1285 (1996), under facts parallel with those in Salinas, our State Supreme Court held that a prosecutor’s comment on the defendant’s pre-arrest silence violated the Fifth Amendment. The court heavily based that holding on its interpretation of then-existing federal law. If the state high Court chooses to continue following federal law on this topic, it would need to abandon its Easter decision. However, not all is lost. The Court always has the option of upholding Easter by basing its decision on adequate and independent state grounds (Article I, Section 9), rather than the Fifth Amendment.

4 thoughts on “SCOTUS Approves Use of Pre-Miranda Silence as Evidence of Guilt

  1. Pingback: Why you shouldn't say anything if you have to use your gun for defense.

  2. Erin Sperger

    Great summary! I think there is a compelling argument that Salinas is not authoritative. Even though the WA Supreme Court based their ruling in Easter on federal law, its analysis was based in part on State law. I would argue that the only reason the Court said the federal and state constitutions were analogous is because, at the time, they arrived at parallel conclusions. Because the federal constitution is now interpreted more broadly, WA’s constitution is no longer analogous. The Court should stand by its previous, more narrow interpretation.

  3. Paul Hirsch

    I am not sure how arguable the precedential value of this opinion is. Under the rule in Marks “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . ..’ Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).” Marks v. US, 430 U.S. 188, 193 (1978). The Thomas- Scalia rationale for upholding the conviction is broarder than the Alito plurality rationale, therefore the Alito opinion is controlling. Or so it seems to me.

  4. Jennifer Richards

    I think you put it aptly by summarizing the dissent – “damned if you do, damned if you don’t.” I think it is ludicrous to expect defendants to understand the full spectrum of their rights, when to invoke them, and how to do so. I agree with Justice Breyer, to ignore the circumstances when there is a reasonable inference that the defendant was invoking the right produces an unfair result. Great post, it will be interesting to see what the Washington Supreme Court does (if and when this issue presents itself.)

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