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
- 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.
- 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.