## Facts

- Houston police investigated a double homicide and questioned Genovevo Salinas.
- Salinas voluntarily accompanied officers to the police station and was questioned for about an hour in a noncustodial setting; he was not under arrest and received no Miranda warnings.
- Salinas answered many questions, but when asked whether shotgun shell casings from the crime scene would match a shotgun taken from his home, he remained silent and showed signs of nervousness.
- Ballistics later matched the casings to Salinas’s shotgun; a witness also reported that Salinas admitted involvement.
- Salinas was charged in 1993, was later located and arrested in 2007, and was convicted of murder after a second trial.
- At trial, over objection, the prosecutor used Salinas’s silence and demeanor in response to the shotgun question as evidence of guilt during the State’s case-in-chief.

## Issues

1. Whether the Fifth Amendment bars the prosecution from using a suspect’s pre-arrest, pre-Miranda silence during noncustodial police questioning as substantive evidence of guilt.
2. Whether the Fifth Amendment privilege against self-incrimination protects silence when the suspect does not expressly invoke the privilege.

## Decision

- The Supreme Court affirmed the conviction in a 5–4 decision.
- A three-Justice plurality concluded the Fifth Amendment did not bar the State’s use of Salinas’s silence because he did not expressly invoke the privilege during questioning.
- Two Justices concurred in the judgment on the separate ground that the Fifth Amendment prohibits only compelled self-incrimination, so noncompelled silence may be used even if the privilege were invoked.
- Four Justices dissented, reasoning that Salinas’s selective silence in context functioned as an invocation and should not have been used as evidence of guilt.

## Legal Principles

- The Fifth Amendment privilege is generally not self-executing; a person who seeks its protection must claim it at the time protection is needed.
- Outside recognized settings where invocation is excused (such as custodial interrogation implicating Miranda-based safeguards or the defendant’s right not to testify at trial), silence alone during questioning does not constitute invocation.
- During noncustodial police questioning, pre-arrest, pre-Miranda silence may be used by the prosecution if the suspect does not clearly and expressly invoke the Fifth Amendment privilege.

## Conclusion

The Court held that the Fifth Amendment did not prevent the State from arguing that Salinas’s pre-arrest, pre-Miranda silence suggested guilt because he remained silent without expressly invoking the privilege during a voluntary, noncustodial police interview.


Salinas v. Texas, 570 U.S. 178 (2013)