Supreme Court issues decision in non-capital case involving prosecution comments on defendant’s silence during voluntary noncustodial interrogation
Posted on: 6/28/2013 03:33:05 PM by Peoples

On June 17, 2013, the Supreme Court issued a decision affirming the state court’s denial of Genovevo Salinas’ claim that he was denied his Fifth Amendment rights by the prosecutor’s comments on his silence during interrogation. Salinas v. Texas, 570 U.S. ___ (June 17, 2013). Justice Alito announced the judgment of the Court and delivered an opinion joined by the Chief Justice and Justice Kennedy. Justice Thomas, filed an opinion concurring in the judgment in which Justice Scalia joined. Justice Breyer filed a dissenting opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

Salinas was visited at his home by police officers who were investigating the killing of two men who hosted a party that Salinas had attended the night before the murders. A man had been observed fleeing the victims’ home in a dark-colored car and six shotgun shell casings were recovered from the crime scene. A dark blue car was observed in Salinas’ driveway. Salinas agreed to provide the police with his shotgun for ballistics testing and to accompany the officers to the police station for questioning. The non-custodial interview lasted about an hour. During litigation of this case, it was assumed that Salinas was not read Miranda warnings at any time. Although Salinas answered most of the officers’ questions, he failed to respond when asked if his shotgun would match the shells that had been recovered at the victims’ home. Instead of answering, Salinas looked at the floor, bit his lip, shuffled his feet and clenched his hands in his lap. After a few moments of silence, additional questions were posed that Salinas did answer. Following the interview, Salinas was arrested for outstanding traffic warrants. He was released from custody after prosecutors determined there was insufficient evidence to charge him with the murders. Police later obtained a statement from a man who claimed to have heard Salinas confess to the killings. Salinas was then charged with the murders. At trial, Salinas did not take the stand. Over his objection, prosecutors used his reaction to the question about his shotgun matching the shells at the crime scene as evidence of his guilt. Salinas was convicted of the murders. On appeal, he unsuccessfully argued that his Fifth Amendment rights were violated by the use of his silence in the prosecution’s case in chief. The Supreme Court granted his certiorari petition to resolve a split in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. It found, however, that it was unnecessary to reach that question because Salinas never invoked his privilege against self-incrimination.

The plurality opinion acknowledged that there are two exceptions to the requirement that a person expressly invoke the privilege against self-incrimination if he wants to rely on it. First, a criminal defendant does not have to take the stand and assert the privilege at his own trial. This is because a defendant holds an unqualified right not to testify. The second exception is when government coercion makes the forfeiture of the privilege involuntary. Salinas was not able to benefit from the second exception because his interview with the police was entirely voluntary. The plurality noted that "it would have been a simple matter for [Salinas] to say that he was not answering the officer’s question on Fifth Amendment grounds" and then concluded that "[b]ecause he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment." The Supreme Court declined Salinas’ invitation to create a third exception to the requirement of express invocation of the right against self-incrimination for situations where a witness declines to give an answer that officials suspect would be incriminating.  

Justice Thomas, concurring in the judgment with Justice Scalia, offered his opinion that even had Salinas expressly invoked his right against self-incrimination, the prosecutor’s comments about his precustodial silence would not have been unconstitutional because they did not compel Salinas to give self-incriminating testimony. Justice Thomas reiterated his belief that Griffin v. California, 380 U.S. 609 (1985), which Salinas sought an extension of, is impossible to reconcile with either the text or the history of the Fifth Amendment.  

In dissent, Justice Breyer argued, inter alia, that the circumstances of this case give rise to a reasonable inference that Salinas’ silence was derived from an exercise of his Fifth Amendment rights.