Police in Houston, Texas questioned Genovevo Salinas in 1992 during a murder investigation. Salinas answered all of their questions until the police asked whether he thought that casings found at the murder scene would match the shotgun the police found in his house. In response, Salinas remained silent. Later, he was charged with murder, tried, and convicted partially on the basis of evidence that he had remained silent during police questioning before he was arrested and given his Miranda warnings. Salinas claims that the Texas trial court should not have admitted evidence of his silence because of the Fifth Amendment privilege against self-incrimination. He argues that allowing evidence of his silence would violate the Fifth Amendment by forcing him to speak or have his silence used against him. The State of Texas argues that the evidence was appropriately admitted and outside the protection of Fifth Amendment privilege because Salinas’s silence was non-testimonial and the police questioning was non-coercive. The Supreme Court’s decision will determine the scope of the Fifth Amendment protection against self-incrimination and, more specifically, whether it extends to the protection of a defendant’s pre-arrest, pre-Miranda statements to the police.
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.
Do prosecutors violate an accused criminal’s Fifth Amendment’s right against forced self-incrimination when they use evidence of his silence against him even when the evidence comes from questioning conducted before he was taken into police custody?
After discovering two murder victims in December of 1992, Houston police officers commenced an investigation that led them to Genovevo Salinas, Petitioner, who voluntarily went to the police station for questioning. See Salinas v. State, 269 S.W.3d 176, 177 (Tex. Crim. App. 2012). After consistently answering questions for an hour, Salinas remained silent when the police asked whether shotgun casings found at the murder scene would match the shotgun that had been found at his house. See id. Later, a ballistics analysis matched Salinas’s shotgun to casings at the murder scene, and a witness stated that Salinas had admitted to committing the murder. See id.
The State of Texas charged Salinas with murder in March 1993, but it was unable to find him until 2007. See Salinas v. State, 369 S.W.3d at 177. Salinas’s first trial ended in mistrial, but in the second trial, the court found him guilty of murder. See id. The court allowed the State to introduce evidence of Salinas’s silence from his initial police interview, over objections from Salinas’s counsel that Salinas could invoke the Fifth Amendment privilege against compelled self-incrimination whether or not he was in custody at the time of his incriminating silence. See id. Salinas argued on appeal that the trial court erred when it admitted evidence of his pre-arrest, pre-Miranda silence, but the Court of Appeals found that the trial court did not err and upheld the murder conviction. See id. The Court of Appeals acknowledged that neither Texas’s highest court nor the Supreme Court had addressed the admissibility of pre-arrest, pre-Miranda silence, and that lower state courts are divided over the issue, but it sided with the portion of lower courts that have found such silence admissible. See id.
On further appeal to the Court of Criminal Appeals, Texas’s highest court, Salinas again argued that the lower courts erred in holding admissible the evidence of his silence because doing so violated his Fifth Amendment right against compelled self-incrimination. See Salinas v. State, 369 S.W.3d at 177. The Court of Criminal Appeals upheld Salinas’s conviction, deciding that “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment . . ., and that prosecutors may comment on such silence regardless of whether a defendant testifies.” Id. at 179. In its decision, the court reasoned that because a suspect’s interaction with the police is not compelled in pre-arrest, pre-Miranda circumstances, the Fifth Amendment right is not implicated. See id. The Court of Criminal Appeals pointed to a concurring opinion in Jenkins v. Anderson, in which Justice Stevens reasoned that the Fifth Amendment is “simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak.” Id. at 178 (quoting Jenkins v. Anderson, 447 U.S. 231, 241 (1980) (internal quotations omitted)).
This case concerns whether prosecutors may use a defendant’s silence during pre-arrest, pre-Miranda questioning as substantive evidence of his guilt. See Salinas v. State, 369 S.W.3d at 179. Salinas argues that the Supreme Court should overturn his guilty verdict because the Court of Criminal Appeals and lower Texas state courts erroneously admitted evidence of Salinas’s silence during pre-arrest, pre-Miranda police questioning in violation of the Fifth Amendment. See Brief for Petitioner, Genevevo Salinas, at 12. Texas argues that the evidence was properly admitted because Salinas’s silence during a voluntary, non-custodial interview does not merit Fifth Amendment privilege. See Brief for Respondent, State of Texas, at 11.
Validity of Inferring Guilt from Silence
The Rutherford Institute and Cato Institute ("Institutes") argue that the State’s justification for allowing the evidence is based on the flawed premise that a person’s pre-arrest silence during questioning indicates his guilt. See Brief of Amici Curiae Rutherford Institute and Cato Institute (the “Institutes”) in Support of Petitioner at 4 (the “Institutes”). The Institutes suggest several reasons why an individual questioned by the police might remain silent and notes that these reasons do not denote guilt. See id. at 5; see also Brief of Amicus Curiae American Civil Liberties Union (“ACLU”) in Support of Petitioner at 15-16. For instance, according to the Institutes, timidity, nervousness, confusion, embarrassment, and compliance with a lawyer’s instructions might each explain an innocent person’s choice to stay silent during questioning. See Institutes Brief at 5-6. The Institutes caution that inferring guilt from pre-arrest silence is particularly dangerous to criminal defendants because “juries are likely to attach disproportionate and prejudicial weight to a prosecutor’s comments concerning a defendant’s pre-arrest silence.” See id. at 7. Moreover, argues the ACLU, because evidence of a defendant’s silence does not have clear probative value, allowing this evidence at trial would interfere with the truth-seeking purpose of criminal trials. See ACLU Brief at 14.
On behalf of Texas, the United States notes that a suspect’s temporary silence during voluntary police questioning necessarily raises questions about the meaning of the suspect’s silence. See Brief of Amicus Curiae United States in Support of Respondent at 23. The United States further notes that a suspect in Salinas’s position has established “a baseline of voluntary disclosure” by agreeing to be interviewed and beginning to answer police questions. Id. at 25. These actions, the United States contends, are inconsistent with a suspect’s intention to exercise a Fifth Amendment privilege against self-incrimination. See id. Instead, the United States suggests, the temporary silence could reflect “surprise, uncertainty at the thrust of the question, or an attempt to settle on the most exculpatory answer.” Id. at 26. Because a defendant’s mid-interview silence shows that he has chosen not to invoke his Fifth Amendment privilege and not to answer a specific question, that silence, according to the United States, “is potentially probative evidence of the defendant’s state of mind” and thus admissible at trial. See id. at 29.
Familiarity with Fifth Amendment Privilege and Miranda Warnings
The Institutes and the ACLU argue that if prosecutors are permitted to use pre-arrest silence as substantive evidence, the Court will create a “perverse incentive” for police officers to wait before giving Miranda warnings. See Institutes Brief at 10; see also ACLU Brief at 11. According to the Institutes and the ACLU, officers who wait to give Miranda warnings could take advantage of the “citizenry’s deeply entrenched understanding” that a person has the right to remain silent in police presence. See Institutes Brief at 8-10; see also ACLU Brief at 11. The Institutes predict that by exploiting this understanding, officers will encourage people to remain silent in police presence without knowing that their pre-arrest, pre-Miranda silence can be admitted at trial as prejudicial evidence against them. See Institutes Brief at 10-11. The ACLU warns that withholding protection from a defendant’s pre-arrest, pre-Miranda silences makes it “more valuable” to prosecutors, induces police manipulation of interrogation tactics, and thereby undermines fundamental protections owed to criminal defendants. See ACLU Brief at 11.
The United States argues on Texas’s behalf that because people are generally familiar with the Fifth Amendment, the Court assumes that any suspect interviewed in a non-custodial situation is aware of his Fifth Amendment privilege even before receiving Miranda warnings. See United States Brief at 24. Thus, reasons the United States, if Salinas wanted to refuse to answer police questions and to protect that refusal from being used against him as evidence of guilt, he was required to affirmatively invoke his Fifth Amendment privilege. See id. at 31. Because he did not invoke the privilege, the United States asserts that neither Salinas’s answers during questioning nor his mid-interview silence are entitled to Fifth Amendment protection. See id. Moreover, the United States urges, if the Court prohibits use of only the mid-interview silence evidence because of concerns that the evidence will prejudice the jury against Salinas, the Court will unfairly disadvantage the prosecution by allowing evidence helpful to Salinas and disallowing parallel evidence helpful to Texas. See id. at 30.
The Supreme Court will decide whether the Fifth Amendment privilege against self-incrimination bars States from admitting into evidence a defendant's pre-arrest, pre-Miranda silence, where the defendant does not testify. See Brief for Petitioner, Genevevo Salinas at i; Brief for Respondent, State of Texas at i. The Court will also decide whether such silence is admissible under certain circumstances. See Brief for Petitioner, at 13. Salinas claims that his pre-arrest silence cannot be used against him because it would leave him no way to avoid creating evidence against himself. See Brief for Petitioner, at 13. He contends that this principle is a foundational American legal concept, which the Court incorporated against the states in Griffin v. California. Id. at 14. He also argues that because he was subjected to government questioning, the right to remain silent applies and bars the State from using his silence against him. Id. at 25. Texas argues that the right to remain silent did not apply because Salinas was subjected to voluntary, non-custodial questioning that was not inherently coercive. See Brief for Respondent, 10-11, 29-30. Texas claims that Salinas's silence did not trigger the privilege against self-incrimination and that Salinas otherwise failed to invoke the privilege. Id. at 10, 14. The State also argues that the Griffin rule does not apply to Salinas's pre-arrest silence because Griffin was concerned with a defendant's choice to remain silent at trial. See id. at 42-44.
The Purpose of the Right to Remain Silent
Salinas asserts that the United States has a long tradition of protecting a defendant's right to remain silent. See Brief for Petitioner at 14. He argues that American colonists consciously rejected the inquisitorial practice of forcing a defendant to speak, and instead required that the government produce evidence against him. Id. at 14-15. This principle, he claims, is embodied in the Fifth Amendment privilege against self-incrimination. See id. at 15. Further, he argues that the Supreme Court articulated this principle as a rule in Griffin v. California, holding that the prosecution cannot use a defendant's silence at trial against him because it penalizes him for remaining silent. Id. at 12, 13. Griffin, he contends, bars the government from commenting on a defendant's silence because "[e]ither he takes the stand or his refusal to do so is treated as evidence indicating his guilt." Id. at 12, 13. This choice, he argues, compels a defendant to become a witness against himself in violation of the Fifth Amendment. Salinas contends that the Court has also recognized a defendant's right to silence in scenarios beyond the courtroom, including most notably, custodial interrogations. See id. at 13. In Miranda v. Arizona, he argues, the Court clarified that after being advised of his rights, a defendant cannot be penalized for remaining silent while in police custody. Id. at 13-14. Likewise, he asserts that the prosecution may not use evidence of his silence during pre-custodial questioning because doing so would compel him to speak or have his silence used against him. Id. at 17.
In response, Texas argues that the Fifth Amendment protects individuals from being coerced into incriminating themselves, and that Salinas was not coerced. See Brief for Respondent at 27. Historically, Texas claims, pre-trial silence was not associated with the coercive government conduct barred by the Fifth Amendment. Id. at29. When the Court addressed the pre-trial interrogation in Miranda, Texas contends, the Court focused on the inherently coercive nature of the custodial interrogation. Id. at 30. Accordingly, the State argues, the Court's post-Miranda decisions have been careful to limit Miranda protection to custodial interrogations. Id. at30-31. Texas asserts that the Court has recognized various instances in which government questioning alone is not inherently coercive. See id. at31-32. For instance, Texas claims, the Court has recognized that an individual in a police station was not coerced where he was generally free to move around, and even that police questioning in a prison environment is not inherently coercive. Id. at31. Here, Texas argues, Salinas never invoked the privilege against self-incrimination nor was the environment so inherently coercive that it triggered Fifth Amendment protection. Id. at32, 36.
Fifth Amendment Applicability to Pre-Arrest Non-Custodial Silence
Salinas argues that the Fifth Amendment applies to his pre-arrest, non-custodial silence. Brief for Petitioner at 17, 25. First, he claims that the logic of Griffin applies equally to a defendant's silence at trial and during police questioning: allowing the prosecution to comment on a defendant's silence in either scenario would improperly compel the defendant to speak. Id. at 17. Indeed, he continues, permitting the prosecution to use a defendant's pre-arrest silence, but not his silence at trial or while in custody, would undermine Griffin by merely pushing back in time the stage at which the prosecution can compel a defendant to speak. Id. at 18. Salinas also argues that the Fifth Amendment applies because he was subject to government questioning before being arrested or being advised of his Miranda rights. Id. at 25. Further, Salinas asserts that although Miranda requires certain warnings before custodial interrogation, the Court has recognized that the right to remain silent also applies in various non-custodial settings. Id. at 24, 25. For instance, he notes that during traffic stops, which are not custodial scenarios, individuals do not have to respond to police questions. Id. at 25-26. Moreover, he claims that the Court has recognized that the right to remain silent attaches to individuals facing government inquiry regardless of whether the defendant is in custody. Id. at 26.
Texas responds that Salinas's silence does not receive Fifth Amendment protection. Brief for Respondent at 10, 14. The State emphasizes that Salinas was not compelled to incriminate himself. Id. at27. The Court, Texas argues, has rejected the notion that the chance of drawing inferences about a defendant's guilt at trial from a defendant's pre-trial silence compels the defendant to speak. Id. at 31.Texas also asserts that Salinas was not subjected to an inherently coercive environment such as custodial interrogation, and that he voluntarily spoke with the police. Id. at30, 32. The State adds that Salinas was free to leave throughout the police questioning. Id. at32. Moreover, the State contends that the Court has never extended Miranda to protect non-custodial police interviews. Id. at37. Such scenarios have not received Miranda protection, Texas argues, because they are not so inherently coercive that they require a non-rebuttable presumption of coercion. See id. at37. Texas also argues that Griffin does not trigger Fifth Amendment protection because Griffin was limited to a defendant's right to remain silent at trial. Id. at40. The Griffin court, Texas contends, barred the prosecution from commenting on the defendant's silence because doing so disrupted the presumption of innocence, which is a trial right. Id. at42-44. As a trial right, Texas argues, it allocates the burden of proof in a criminal trial, but does not alter the rights of an individual during pre-trial, pre-arrest questioning. Id. at44. The State adds that when the Court has extended Griffin to protect the right to silence in scenarios outside the courtroom, it has involved a trial right. See id. at45.
The Supreme Court will decide whether or under what circumstances the Fifth Amendment protects pre-arrest, pre-Miranda silence. The decision will significantly impact law enforcement practices, including how police question individuals and advise them of their Miranda rights. Similarly, the decision will influence the way prosecutors introduce evidence and attempt to prove defendants’ guilt. Salinas argues that pre-arrest silence in response to government questioning cannot be introduced because it compels a defendant to speak or have his silence used against him. Texas argues that the Fifth Amendment does not apply to pre-arrest, pre-custodial silence because such a setting is not inherently coercive. The Supreme Court will address a fundamental question about criminal procedure and the scope of the Fifth Amendment.
- Adam Liptak, Justices to Hear Cases on Groups’ Free Speech (Jan. 12, 2013)
- Warren Richey, Can Police Use Your Silence Against You? Supreme Court to Decide (Jan. 11, 2013)