The Supreme Court has ruled in a 5-4 decision that unless a criminal suspect expressly invokes the Fifth Amendment right to remain silent during pre-Miranda questioning, the suspect’s silence may be admissible evidence at trial. The majority of the court agreed that the privilege is not “self-executing,” and that those defendants who desire its protections “must claim it.”

Before Genoveno Salinas’ trial and conviction for a double murder committed in Houston, Texas in 1992, police had visited the house of Salinas’, the prime suspect in the case, and seized a shotgun that was believed to be the weapon used in the crime. Police subsequently questioned Salinas’ in the police station, but neither arrested him nor read him his Miranda rights before the interrogation began. Both Salinas and the prosecution agreed that the questioning was voluntary, and that Salinas was free to leave at any time.

However, Salinas was eventually asked a question for which he chose not to respond. The officer asked whether a ballistics report from the shotgun shells found at homicide would match the results for the shotgun taken from Salinas’ house – and to this question he fell silent, without expressly invoking his Fifth Amendment Right. The prosecution later used this silence as a means to establish an inference of guilt, while the defendant argued that using his silence as evidence against him was a violation of his constitutional rights.

While the Court’s five conservative-leaning Justices joined in the decision to allow the silence to be used as evidence, Justice Thomas’ concurring opinion went one step further. He argued that even if Salinas’ had expressly invoked his Fifth Amendment right to remain silent, his non-responsiveness to the officer’s question would still have been admissible nonetheless. This rationale was based on an originalist interpretation of the Constitution, under the theory that admission of this evidence would still not have compelled the defendant to act as a witness against himself. This narrow interpretation of the protections afforded by the Fifth Amendment was also supported by Justice Scalia.

The dissenting opinion, written by Justice Breyer, rejects both approaches taken by the majority, arguing instead that the privilege does not need to be directly related to “testimony,” but rather applies in any situation where a defendant is attempting to avoid divulging incriminating information about oneself. However, the majority of the Court agreed with the Texas Supreme Court, and upheld the lower court’s decision to admit the silence as evidence of Salinas’ guilt.

Although the scope of this decision is limited to the field of criminal law, the effect that it will have on cases of defendants pleading the Fifth Amendment in non-criminal proceedings has yet to be seen. If the same principles of law are someday applied to other forums of legal disputes, such as administrative proceedings, lawyers and their clients may soon find themselves re-evaluating the process by which they can claim the Fifth Amendment and still be afforded the protections that they have come to expect from it.

Tags: Commercial Litigation, Joseph Pastore