In a 5-4 decision on June 17 in a Houston murder case, the U.S. Supreme Court rejected Genovevo Salinas' claim that Harris County prosecutors violated his Fifth Amendment right when using his silence during a voluntary interrogation as evidence against him at trial.
The Supreme Court affirmed Salinas v. Texas, a Texas Court of Criminal Appeals decision that had affirmed Salinas' conviction in the 1992 murder in Houston.
"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's questions," Justice Samuel Alito wrote in an opinion joined by Chief Justice John Roberts and Justice Anthony Kennedy.
Justices Clarence Thomas and Antonin Scalia joined in a concurrence, while Justice Stephen Breyer wrote a dissenting opinion joined by Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg.
Salinas' attorney Neal Davis of Houston says he's very disappointed in the opinion.
"I really agree with the dissent. For all the reasons set forth in the dissent, the majority was wrong. There are lots of reasons why silence should be sufficient . . . to invoke the Fifth Amendment," says Davis, a partner in Stradley, Davis & Reynal.
Alan Curry, chief of the appellate division at the Harris County District Attorney's office who argued the case for the government, says the decision "gives a bright line to know when Miranda applies and when it doesn't."
As described in the opinion, two men were murdered in Houston in 1992, and police investigating the murder visited Salinas at his house in 1993. He agreed to turn over his shotgun for ballistics testing and go with police to the police station for questioning.
During a "non-custodial" interview, Salinas answered questions but declined to answer when asked if shells recovered from the murder scene would match his shotgun. He answered subsequent questions.
Salinas eventually was charged with the murders. He was convicted at trial and sentenced to 20 years in prison. Although Salinas did not testify at trial, the opinion states that over Salinas' objection "prosecutors used his reaction to the officer's question during the 1993 interview as evidence of his guilt."
Salinas appealed his conviction on the ground the prosecutors' "use of his silence as part of their case in chief violated the Fifth Amendment," but the court of appeals affirmed his conviction in 2011, and the CCA affirmed it in 2012.
Alito wrote in the opinion that the court has "long held" that a witness who wants protection under the Fifth Amendment must claim it. However, according to the opinion, two exceptions to that rule do not apply in this case. The first is a criminal defendant's right to not testify at trial, as held in the 1965 decision in Griffin v. California. The second exception is when "governmental coercion" makes the forfeiture of the privilege involuntary.
The court also rejected Salinas' suggestion to adopt a third exception to the invocation requirement, which would apply in a case when a witness "stands mute and thereby declines to give an answer that officials suspect would be incriminating."
Alito wrote that someone might decline to answer a police officer's question for reasons other than Fifth Amendment privilege.
"[H]e might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else," Alito wrote.
In the concurring opinion, Thomas and Scalia held that Salinas' claim would fail even if he had invoked the Fifth Amendment, "because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony."
In his dissent, Breyer wrote that the Fifth Amendment in Salinas' case prohibits the prosecution from commenting on Salinas' silence in response to police questioning.
"To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament," Breyer wrote, adding that the circumstances of Salinas' interrogation "give rise to a reasonable inference that Salinas' silence derived from the exercise of his Fifth Amendment rights."
If a suspect must expressly invoke the privilege, Breyer wrote, does he have to use the exact words of Fifth Amendment?
"How can an individual who is not a lawyer know that these particular words are legally magic?" Breyer wrote.
Davis, Salinas' lawyer, says that's a key point.
"Poor people are not going to know generally what buzz words to invoke the Fifth Amendment, but white-collar defendants and people who have resources and attorneys will know," he says. "It's fundamentally unfair."
However, Curry says an individual being questioned doesn't have to invoke the formal words. "He just has to make it clear to the officer he's finished. This defendant didn't do that," Curry says.