Salinas v. Texas - 12-246 (2013)



No. 12–246



on writ of certiorari to the court of criminal appeals of texas

[June 17, 2013]

     Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.

     In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning. And I dissent from the Court’s contrary conclusion.


     In January 1993, Houston police began to suspect petitioner Genovevo Salinas of having committed two murders the previous month. They asked Salinas to come to the police station “to take photographs and to clear him as [a] suspect.” App. 3. At the station, police took Salinas into what he describes as “an interview room.” Brief for Petitioner 3. Because he was “free to leave at that time,” App. 14, they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder.” Id., at 17. At that point Salinas fell silent. Ibid.

     Salinas was later tried for, and convicted of, murder. At closing argument, drawing on testimony he had elicited earlier, the prosecutor pointed out to the jury that Salinas, during his earlier questioning at the police station, had remained silent when asked about the shotgun. The prosecutor told the jury, among other things, that “ ‘[a]n innocent person’ ” would have said, “ ‘What are you talking about? I didn’t do that. I wasn’t there.’ ” 368 S. W. 3d 550, 556 (Tex. Ct. App. 2011). But Salinas, the prosecutor said, “ ‘didn’t respond that way.’ ” Ibid. Rather, “ ‘[h]e wouldn’t answer that question.’ ” Ibid.


     The question before us is whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting upon the evidence about Salinas’ silence. The plurality believes that the Amendment does not bar the evidence and comments because Salinas “did not expressly invoke the privilege against self-incrimination” when he fell silent during the questioning at the police station. Ante, at 1. But, in my view, that conclusion is inconsistent with this Court’s case law and its underlying practical rationale.


     The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts 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 case upon a defendant’s failure to testify “violates the Fifth Amendment.” Griffin v. California, 380 U. S. 609 , 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 the face of accusation.” Miranda v. Arizona, 384 U. S. 436, 468, n. 37 (1966) (emphasis added).

     Particularly in the context of police interrogation, a contrary rule would undermine the basic protection that the Fifth Amendment provides. Cf. Kastigar v. United States, 406 U. S. 441, 461 (1972) (“The privilege . . . usu- ally operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer”). To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent. See, e.g., Griffin, supra, at 613; Kassin, Inside Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself”—very much what the Fifth Amendment forbids. Cf. Pennsylvania v. Muniz, 496 U. S. 582 –597 (1990) (definition of “testimonial” includes responses to questions that require a suspect to communicate an express or implied assertion of fact or belief). And that is similarly so whether the questioned individual, as part of his decision to remain silent, invokes the Fifth Amendment explicitly or implic- itly, through words, through deeds, or through reference to surrounding circumstances.


     It is consequently not surprising that this Court, more than half a century ago, explained that “no ritualistic formula is necessary in order to invoke the privilege.” Quinn v. United States, 349 U. S. 155, 164 (1955) . Thus, a prosecutor may not comment on a defendant’s failure to testify at trial—even if neither the defendant nor anyone else ever mentions a Fifth Amendment right not to do so. Circumstances, not a defendant’s statement, tie the defendant’s silence to the right. Similarly, a prosecutor may not comment on the fact that a defendant in custody, after receiving Miranda warnings, “stood mute”—regardless of whether he “claimed his privilege” in so many words. Miranda, supra, at 468, n. 37. Again, it is not any explicit statement but, instead, the defendant’s deeds (silence) and circumstances (receipt of the warnings) that tie together silence and constitutional right. Most lower courts have so construed the law, even where the defendant, having received Miranda warnings, answers some questions while remaining silent as to others. See, e.g., Hurd v. Terhune, 619 F. 3d 1080, 1087 (CA9 2010); United States v. May, 52 F. 3d 885, 890 (CA10 1995); United States v. Scott, 47 F. 3d 904, 907 (CA7 1995); United States v. Canterbury, 985 F. 2d 483, 486 (CA10 1993); Grieco v. Hall, 641 F. 2d 1029, 1034 (CA1 1981); United States v. Ghiz, 491 F. 2d 599, 600 (CA4 1974). But see, e.g., United States v. Harris, 956 F. 2d 177, 181 (CA8 1992).

     The cases in which this Court has insisted that a defendant expressly mention the Fifth Amendment by name in order to rely on its privilege to protect silence are cases where (1) the circumstances surrounding the silence (unlike the present case) did not give rise to an inference that the defendant intended, by his silence, to exercise his Fifth Amendment rights; and (2) the questioner greeted by the silence (again unlike the present case) had a special need to know whether the defendant sought to rely on the protections of the Fifth Amendment. See ante, at 4 (explaining that, in such cases, the government needs to know the basis for refusing to answer “so that it may either argue that the testimony sought could not be self-incriminating or cure any potential self-incrimination through a grant of immunity” (citation omitted)). These cases include Roberts, Rogers, Sullivan, Vajtauer, and Jenkins—all of which at least do involve the protection of silence—and also include cases emphasized by the plural- ity that are not even about silence—namely, Murphy and Garner.

     In Roberts and Rogers, the individual refused to answer questions that government investigators (in Roberts) and a grand jury (in Rogers) asked, principally because the individual wanted to avoid incriminating other persons. Roberts v. United States, 445 U. S. 552 –556 (1980); Rogers v. United States, 340 U. S. 367 –370, and n. 4 (1951). But the Fifth Amendment does not protect someone from incriminating others; it protects against self-incrimination. In turn, neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment, while knowledge of any such tie would have proved critical to the questioner’s determination as to whether the defendant had any proper legal basis for claiming Fifth Amendment protection.

     In Sullivan, the defendant’s silence consisted of his failure to file a tax return—a return, he later claimed, that would have revealed his illegal activity as a bootlegger. United States v. Sullivan, 274 U. S. 259 –264 (1927). The circumstances did not give rise to an inference of a tie between his silence (in the form of failing to file a tax return) and the Fifth Amendment; and, if he really did want to rely on the Fifth Amendment, then the government would have had special need to know of any such tie in order to determine whether, for example, the assertion of privilege was valid and, perhaps, an offer of immunity was appropriate.

     In Vajtauer, an alien refused to answer questions asked by an immigration official at a deportation proceeding. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927) . Here, the circumstances gave rise to a distinct inference that the alien was not invoking any Fifth Amendment privilege: The alien’s lawyer had stated quite publicly at the hearing that he advised his client to remain silent not on Fifth Amendment grounds; rather, the lawyer “ ‘advise[d] the alien not to answer any further questions until the evidence upon which the warrant is based will be presented here.’ ” Id., at 106–107 (quoting the lawyer). This statement weakened or destroyed the possibility of a silence- Fifth Amendment linkage; the Government could not challenge his right to invoke the Fifth Amendment; and this Court described its later invocation as “evidently an afterthought.” Id., at 113.

     Perhaps most illustrative is Jenkins, a case upon which the plurality relies, ante, at 9, n. 3, and upon which the Texas Court of Criminal Appeals relied almost exclusively, 369 S. W. 3d 176, 178–179 (2012). Jenkins killed someone, and was not arrested until he turned himself in two weeks later. Jenkins v. Anderson, 447 U. S. 231, 232 (1980) . On cross-examination at his trial, Jenkins claimed that his killing was in self-defense after being attacked. Id., at 232–233. The prosecutor then asked why he did not report the alleged attack, and in closing argument suggested that Jenkins’ failure to do so cast doubt on his claim to have acted in self-defense. Id., at 233–234. We explained that this unusual form of “prearrest silence” was not constitutionally protected from use at trial. Id., at 240. Perhaps even more aptly, Justice Stevens’ concurrence noted that “the privilege against compulsory self-incrimination is simply irrelevant” in such circumstances.” Id., at 241 (footnote omitted). How would anyone have known that Jenkins, while failing to report an attack, was relying on the Fifth Amendment? And how would the government have had any way of determining whether his claim was valid? In Jenkins, as in Roberts, Rogers, Sullivan, and Vajtauer, no one had any reason to connect silence to the Fifth Amendment; and the government had no opportunity to contest any alleged connection.

     Still further afield from today’s case are Murphy and Garner, neither of which involved silence at all. Rather, in both cases, a defendant had earlier answered questions posed by the government—in Murphy, by speaking with a probation officer, and in Garner, by completing a tax return. Minnesota v. Murphy, 465 U. S. 420 –425 (1984); Garner v. United States, 424 U. S. 648 –650 (1976). At the time of providing answers, neither circumstances nor deeds nor words suggested reliance on the Fifth Amendment: Murphy simply answered questions posed by his probation officer; Garner simply filled out a tax return. They did not argue that their self-incriminating statements had been “compelled” in violation of the Fifth Amendment until later, at trial. Murphy, supra, at 425, 431; Garner, supra, at 649, 665. The Court held that those statements were not compelled. Murphy, supra, at 440; Garner, supra, at 665. The circumstances indicated that the defendants had affirmatively chosen to speak and to write.

     Thus, we have two sets of cases: One where express invocation of the Fifth Amendment was not required to tie one’s silence to its protections, and another where something like express invocation was required, because circumstances demanded some explanation for the silence (or the statements) in order to indicate that the Fifth Amendment was at issue.

     There is also a third set of cases, cases that may well fit into the second category but where the Court has held that the Fifth Amendment both applies and does not require express invocation despite ambiguous circumstances. The Court in those cases has made clear that an individual, when silent, need not expressly invoke the Fifth Amendment if there are “inherently compelling pressures” not to do so. Miranda, 384 U. S., at 467. Thus, in Garrity v. New Jersey, 385 U. S. 493, 497 (1967) , the Court held that no explicit assertion of the Fifth Amendment was required where, in the course of an investigation, such assertion would, by law, have cost police officers their jobs. Similarly, this Court did not require explicit assertion in response to a grand jury subpoena where that assertion would have cost two architects their public contracts or a political official his job. Lefkowitz v. Turley, 414 U. S. 70 –76 (1973); Lefkowitz v. Cunningham, 431 U. S. 801 –804 (1977). In Leary v. United States, 395 U. S. 6 –29 (1969), the Court held that the Fifth Amendment did not require explicit assertion of the privilege against self-incrimination because, in the context of the Marihuana Tax Act, such assertion would have been inherently incriminating. In Albertson v. Subversive Activities Control Bd., 382 U. S. 70 –79 (1965), we held the same where explicit assertion of the Fifth Amendment would have required, as a first step, the potentially incriminating admission of membership in the Communist Party. The Court has also held that gamblers, without explicitly invoking the Fifth Amendment, need not comply with tax requirements that would, inherently and directly, lead to self-incrimination. Marchetti v. United States, 390 U. S. 39 –61 (1968); Grosso v. United States, 390 U. S. 62 –68 (1968). All told, this third category of cases receives the same treatment as the first: Circumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment. So, too, in today’s case.

     The plurality refers to one additional case, namely Berghuis v. Thompkins, 560 U. S. 370 (2010) . See ante, at 8. But that case is here beside the point. In Berghuis, the defendant was in custody, he had been informed of his Miranda rights, and he was subsequently silent in the face of 2 hours and 45 minutes of questioning before he offered any substantive answers. Id., at ___–___ (slip op., at 2–4). The Court held that he had waived his Fifth Amendment rights in respect to his later speech. The Court said nothing at all about a prosecutor’s right to comment on his preceding silence and no prosecutor sought to do so. Indeed, how could a prosecutor lawfully have tried to do so, given this Court’s statement in Mi- randa itself that a prosecutor cannot comment on the fact that, after receiving Miranda warnings, the suspect “stood mute”? 384 U. S., at 468, n. 37.

     We end where we began. “[N]o ritualistic formula is necessary in order to invoke the privilege.” Quinn, 349 U. S., at 164. Much depends on the circumstances of the particular case, the most important circumstances being: (1) whether one can fairly infer that the individual being questioned is invoking the Amendment’s protection; (2) if that 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 the Fifth Amendment, such as inherent penalization simply by answering.


     Applying these principles to the present case, I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder. See 368 S. W. 3d, at 552–553.

     These circumstances give rise to a reasonable inference that Salinas’ silence derived from an exercise of his Fifth Amendment rights. This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime. See Dickerson v. United States, 530 U. S. 428, 443 (2000) ; Brogan v. United States, 522 U. S. 398, 405 (1998) ; Michigan v. Tucker, 417 U. S. 433, 439 (1974) . The nature of the surroundings, the switch of topic, the particular question—all suggested that the right we have and generally know we have was at issue at the critical moment here. Salinas, not being represented by counsel, would not likely have used the precise words “ Fifth Amendment” to invoke his rights because he would not likely have been aware of technical legal requirements, such as a need to identify the Fifth Amendment by name.

     At the same time, the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence. That need is also supported by the absence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, 341 U. S. 479, 486 (1951) , or whether to grant immunity, see Kastigar, 406 U. S., at 448. Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of the privilege.” Quinn, supra, at 164. That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor. See 380 U. S., at 614–615.


     I recognize that other cases may arise where facts and circumstances surrounding an individual’s silence present a closer question. The critical question—whether those circumstances give rise to a fair inference that the silence rests on the Fifth Amendment—will not always prove easy to administer. But that consideration does not support the plurality’s rule-based approach here, for the administrative problems accompanying the plurality’s approach are even worse.

     The plurality says that a suspect must “expressly invoke the privilege against self-incrimination.” Ante, at 1. But does it really mean that the suspect must use the exact words “ Fifth Amendment”? How can an individual who is not a lawyer know that these particular words are legally magic? Nor does the Solicitor General help when he adds that the suspect may “mak[e] the claim ‘in any language that [the questioner] may reasonably be expected to understand as an attempt to invoke the privilege.’ ” Brief for United States as Amicus Curiae 22 (quoting Quinn, supra, at 162–163; alteration in original). What counts as “making the claim”? Suppose the individual says, “Let’s discuss something else,” or “I’m not sure I want to answer that”; or suppose he just gets up and leaves the room. Cf. Davis v. Mississippi, 394 U. S. 721 , n. 6 (1969) (affirming “the settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes[,] they have no right to compel them to answer”); Berkemer v. McCarty, 468 U. S. 420, 439 (1984) (noting that even someone detained in a Terry stop “is not obliged to respond” to police questions); Florida v. Royer, 460 U. S. 491 –498 (1983) (plurality opinion). How is simple silence in the present context any different?

     The basic problem for the plurality is that an effort to have a simple, clear “explicit statement” rule poses a serious obstacle to those who, like Salinas, seek to assert their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail. At the same time, acknowledging that our case law does not require use of specific words, see ante, at 2, leaves the plurality without the administrative benefits it might hope to find in requiring that detail.

     Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today’s case is clearly: yes.

     For these reasons, I believe that the Fifth Amendment prohibits a prosecutor from commenting on Salinas’s silence. I respectfully dissent from the Court’s contrary conclusion.

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