Supreme Court Watch: Oral Argument Will Consider Refusal To Answer Law Enforcement Questions Before Arrest

Supreme Court argument on Wednesday considers whether the Fifth Amendment privilege against self-incrimination permits a defendant to refuse to answer a question posed by law enforcement prior to arrest or the advisement of Miranda rights, in Salinas v. Texas, _ U.S. _ (No. 12-246)

Tomorrow, on Wednesday, April 17, 2013, the U.S. Supreme Court hears oral argument in a case which considers the scope of protection under the Fifth Amendment privilege against self-incrimination before an arrest or the advisement of Miranda rights. In Salinas v. Texas, _ U.S. _ (No. 12-246), the question presented is:

Whether or under what circumstances the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Summary Facts

Petitioner Salinas became a suspect in an investigation concerning the homicide shooting of two brothers in December 1992. Officers located discarded shotgun shells. At the end of January 1993, petitioner Salinas voluntarily answered questions at his residence and then at the police station, he provided "elimination [finger]prints." He also signed a consent to search his residence. During an interview of nearly one hour at the police station, he answered all questions except one: "when asked whether shotgun shells found at the crime scene would match a shotgun found at his home," he "remained silent, and, according to the interrogating officer, demonstrated signs of deception." Salinas v. State, 369 S.W.3d 176, 177 (Tex. Crim. App. 2012) (No. PD-0570-11). Further investigation confirmed a ballistics match between the recovered casings and the defendant's shotgun. A witness also indicated that the defendant admitted murdering both victims. After being charged, the defendant's first trial resulted in a mistrial after the jury was unable to reach a verdict. At a second trial, the government was permitted to introduce evidence of his silence during police questioning. The defendant objected on Fifth Amendment grounds "whether he was in custody or not." During closing argument, the prosecutor highlighted the silence:

The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody – there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person 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. It’s my shotgun. It’s been in our house. What are you talking about? He wouldn’t answer that question.

The jury convicted the defendant and he was sentenced to serve twenty years in prison and ordered to pay a $5,000 fine. The Texas Court of Appeals noted a division in the courts on whether pre-arrest, pre-Miranda silence could be admitted, and affirmed the conviction. Salinas v. State, 2011 WL 903984, 2011 Tex. App. LEXIS 1923 (Tex. App.–Houston 14th Dist. Mar. 17, 2011). The Court of Criminal Appeals of Texas, exercising discretionary review, noted the open issue and also affirmed the conviction.

Fifth Amendment Implications

What substantive use can or should the government be able to make out of silence or refusal to answer questions prior to custody or a Miranda warning? The Fifth Amendment provides: "No person ... shall be compelled in any criminal case to be a witness against himself."

The petitioner contends that the Fifth Amendment bars any use as a witness cannot be compelled to be a witness against himself. As previously noted, the courts are divided on this issue. See Supreme Court Watch: Does The Fifth Amendment Protect Noncustodial, Pre-Miranda Silence?

The petitioner asks the Court to extend the rule in Griffin v. California, 380 U.S. 609, 615 (1965) which bars the government from commenting on the defendant’s silence at trial under the Fifth Amendment. The respondent counters that the Griffin rule involved a decision at trial whether to testify and did not involve a "voluntary, non-custodial communication" which was not compelled. There was no application or invocation of the Fifth Amendment during the non-custodial questioning.

In contrast, the Criminal Justice Legal Foundation frames the issue differently: "This case is about suppression of evidence" as there "is no 'right to remain silent' in the Constitution" or "right to pick and choose, being a witness on some questions and not others." Brief Amicus Curiae of Criminal Justice Legal Foundation in Support of Respondent, at 3. Further, Miranda advisements are triggered when custody occurs.

What is the meaning of silence during questioning? When an individual remains silence, has the government compelled any testimony within the meaning of the Fifth Amendment? The argument tomorrow may shed light on the scope and application of the Fifth Amendment. The decision, expected by June, will resolve an open issue before the Supreme Court on which the lower courts remain strongly divided.


The following briefs and rulings have been filed in the case:

Merits Briefs

Amicus Briefs

Certiorari Petition Briefs

Lower Court Ruling and Record

  • April 2012: Court of Criminal Appeals of Texas Opinion Under Review: Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012), cert. granted, _ U.S. _ (January 11, 2013) (No. 12-246)
  • Supreme Court Docket


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