Supreme Court Watch: Splintered Ruling On Fifth Amendment Privilege Applied In Pre-Custody Setting

In a plurality opinion, the Supreme Court holds that the Fifth Amendment privilege against self-incrimination does not automatically apply to silence in the precustodial setting during questioning by law enforcement; plurality concludes that since the Fifth Amendment privilege is "generally is not self-executing," it must be "expressly invoke[d] ... in response to the officer’s question; the case highlights differences among the Justices concerning the scope and application of the Fifth Amendment, in Salinas v. Texas, 570 U.S. _, 133 S.Ct. 2174 (June 17, 2013) (No. 12-246)

On Monday, June 17, 2013, the Supreme Court held that a defendant's silence during police questioning in a precustodial setting could be used at trial under the Fifth Amendment privilege against self-incrimination. No opinion obtained the support of a majority as a plurality opinion and concurrence provided the judgment of the Court.

The question as originally presented in the case was:

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.

The Supreme Court had noted but left open this issue. See Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980) ("Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment."). The Supreme Court has held that after a defendant testifies, “the Fifth Amendment is not violated by the use of [a defendant’s] prearrest silence to impeach [his] credibility.” 447 U.S. at 238.

There was no majority opinion issued as the Court could not agree on the application of the Fifth Amendment to resolve the question. Instead, three opinions were issued. First, Justice Samuel Alito, Jr. announced the judgment of the Court in a plurality opinion which was joined by Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy. Second, Justice Clarence Thomas filed an opinion concurring in the judgment which was joined by Justice Antonin Scalia. Finally, Justice Stephen G. Breyer wrote the dissent and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Summary Facts

During an investigation concerning the homicide shooting of two brothers in December 1992, officers located discarded shotgun shells. At the end of January 1993, defendant 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). 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.

Plurality Opinion

As Justice Samuel Alito, Jr. noted in the plurality opinion, the petitioner failed to invoke the privilege by not responding to further questions in a voluntary setting:

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “‘must claim it.’” Minnesota v. Murphy, 465 U.S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U.S. 424, 427 (1943)). Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U.S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.

Salinas, 570 U.S. at _, 133 S.Ct. 2174 (plurality opinion).

Absent express invocation of the privilege, the plurality opinion noted that two exceptions had been “recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here.” Salinas, 570 U.S. at _. The first exception was the rule that did not require a criminal defendant to take the stand to claim the privilege at trial under Griffin v. California, 380 U.S. 609, 613–615 (1965). The second exception applied “where governmental coercion makes his forfeiture of the privilege involuntary,” such as for Miranda warnings or for public employment or contracts. Salinas, 570 U.S. at _ (plurality opinion) (citing Garrity v. New Jersey, 385 U.S. 493, 497 (1967) (public employment); see also Lefkowitz v. Cunningham, 431 U.S. 801, 802–804 (1977) (public office); Lefkowitz v. Turley, 414 U.S. 70, 84–85 (1973) (public contracts).

The plurality found it unnecessary to recognize a third exception “to the ‘general rule’ that a witness must assert the privilege to subsequently benefit from it.” Salinas, 570 U.S. at _ (plurality opinion) (citation omitted). Based on the facts of the case, when the petitioner voluntarily responded to police questions but then elected not to answer further questions, he failed to invoke the protections of the Fifth Amendment privilege. The plurality opinion noted the challenges in discerning whether silence in the face of questioning could be assumed to be an explicit invocation of the privilege:

To be sure, someone might decline to answer apolice 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 isevery possible explanation protected by the Fifth Amend¬ment. 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.” Garner [v. United States], 424 U.S. [648,] 655 [(1976)].


While concurring in the judgment, Justices Clarence Thomas and Antonin Scalia found "a simpler way to resolve this case." According to their concurrence: "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." Salinas, 570 U.S. at _ (concurring opinion). Justice Thomas viewed the ruling in Griffin v. California, 380 U.S. 609, 615 (1965) (barring the government from commenting on the defendant’s silence at trial under the Fifth Amendment) to be inconsistent with the language and history of the Fifth Amendment privilege. As he concluded:

Given Griffin’s indefensible foundation, I would not extend it to a defendant’s silence during a precustodial interview. I agree with the plurality that Salinas’ Fifth Amendment claim fails and,therefore, concur in the judgment.

Salinas, 570 U.S. at _ (concurring opinion).


The dissent, authored by Justice Stephen G. Breyer, believed that the Fifth Amendment privilege "prohibits the prosecution from commenting on the petitioner’s silence inresponse to police questioning." Salinas, 570 U.S. at _ (dissenting opinion). As the dissent summarized:

The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silenceamounts 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 caseupon a defendant’s failure to testify “violates the FifthAmendment.” Griffin v. California, 380 U.S. 609, 610, n. 2, 613 (1965) (internal quotation marks omitted). See also United States v. Patane, 542 U.S. 630, 637 (2004) (plurality opinion); Turner v. United States, 396 U.S. 398, 433 (1970) (Black, J., dissenting). And, since “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation,” the “prosecution may not . . . use at trial the fact that he stood mute or claimed his privilege in theface of accusation.” Miranda v. Arizona, 384 U.S. 436, 468, n. 37 (1966) (emphasis added).

Salinas, 570 U.S. at _ (dissenting opinion). According to the dissent, no formal or "ritualistic" invocation was required to obtain the protections of the Fifth Amendment:

Much depends on the circumstances of theparticular case, the most important circumstances being: (1) whether one can fairly infer that the individual being questioned is invoking the Amendment’s protection; (2) ifthat 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 theFifth Amendment, such as inherent penalization simply by answering.

Salinas, 570 U.S. at _ (dissenting opinion).

Summary Observations

A consistent approach to apply the Fifth Amendment to the voluntary questioning by law enforcement could not garner a majority of the Court. The crux of the disagreement turns in part on the application of Griffin. The plurality viewed the case as an exception to the general rule requiring express invocation of the privilege. The concurrence viewed Griffin as "indefensible." In contrast, the dissent would extend Griffin to precustodial questioning by law enforcement.

The three opinions also differed on the question to be resolved. The plurality noted that since the "petitioner did not invoke the privilege during his interview," it was unnecessary to address the original question presented "whether the prosecution may use a defendant’s assertion of theprivilege against self-incrimination during a noncustodial police interview as part of its case in chief." Instead, the majority viewed the "critical question" as "whether, under the 'circumstances; of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not." Salinas, 570 U.S. at _ (plurality opinion). The concurrence believed that the plurality "avoid[ed]" addressing the original question:

We granted certiorari to decide whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant’s precustodial 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.

Salinas, 570 U.S. at _ (concurring opinion).

As the dissent framed the question: "The question before us is whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting upon the evidence about Salinas’ silence." Salinas, 570 U.S. at _ (dissenting opinion). Normally, when a plurality opinion is issued, guidance is found by identifying the "narrowest grounds" from the concurrence. As the Supreme Court has explained:

When 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.

Marks v. United States, 430 U.S. 188, 193 (1968) (internal quotation omitted).

Given the splintered ruling, and differences in applying the Fifth Amendment, it remains to be seen whether the scope of the Fifth Amendment in the precustodial setting will be reconsidered at some point and likely with slightly different facts.

For more information, see past blog posts, the briefs filed in the case, and the Supreme Court Docket Sheet.


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