Salinas v. Texas,
570 U.S. ___ (2013)

Annotate this Case
  • Syllabus (Samuel A. Alito, Jr.)  | 
  • Concurrence (Clarence Thomas)  | 
  • Dissent (Stephen G. Breyer)



No. 12–246



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

[June 17, 2013]

     Justice Thomas, with whom Justice Scalia joins, con-curring in the judgment.

     We granted certiorari to decide whether the Fifth Amend-ment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant’s pre-custodial 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. Ante, at 3. I think there is a simpler way to resolve this case. In my view, 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.

     In Griffin v. California, 380 U. S. 609 (1965) , this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify. Id., at 614. The Court reasoned that such comments, and any adverse inferences drawn from them, are a “penalty” imposed on the defendant’s exercise of his Fifth Amendment privilege. Ibid. Salinas argues that we should extend Griffin’s no-adverse-inference rule to a defendant’s silence during a precustodial interview. I have previously explained that the Court’s decision in Griffin “lacks foundation in the Constitution’s text, history, or logic” and should not be extended. See Mitchell v. United States, 526 U. S. 314, 341 (1999) (dissenting opinion). I adhere to that view today.

     Griffin is impossible to square with the text of the Fifth Amendment, which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” A defendant is not “compelled . . . to be a witness against himself” simply because a jury has been told that it may draw an adverse inference from his silence. See Mitchell, supra, at 331 (Scalia, J., dissenting) (“[T]he threat of an adverse inference does not ‘compel’ anyone to testify. . . . Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony”); Carter v. Kentucky, 450 U. S. 288, 306 (1981) (Powell, J., concurring) (“[N]othing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”).

     Nor does the history of the Fifth Amendment support Griffin. At the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so. See Mitchell, supra, at 332 (Scalia, J., dissenting); Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination 204 (R. Hemholz et al. eds. 1997). 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.

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