On June 17, 2013 the Supreme Court of these great United States (SCOTUS) ruled a criminal suspect does not invoke their 5th Amendment right to silence by remaining silent. Yep, you heard that right. Long live the Constitution!


Right to Remain SilentHere are the salient facts of Salinas v. Texas. Mr. Salinas was a suspect in a Houston murder. Without being placed in custody or receiving his Miranda warnings, Salinas voluntarily answered some police questions but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the killing. At his Texas murder trial, and over his lawyer’s objection, the prosecution used Salinas’ failure to answer the question as evidence of guilt. He was convicted and both the Texas State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim the prosecution’s use of his silence in its case in chief violated the 5th Amendment. A good Bryan-College Station attorney can help you understand how Salinas might effect your criminal charges. 


The basic principle of the SCOTUS opinion was a person must “expressly invoke” their right to silence. The Court held “a defendant normally does not invoke the privilege by remaining silent.” (seriously?) The court believed that “remaining silent” was “insolubly ambiguous.” In other words, there might be many reasons one may remain silent. Obviously, one reason is because they are relying upon their constitutional right. However, the Court speculated a person might remain silent because they’re thinking of a good lie to tell, because they’re embarrassed to answer, or because they were protecting someone else. Good luck to all suspects unschooled in the niceties of 5th Amendment jurisprudence!


An important application of this opinion involves police interrogations following an arrest. (Unless a person is “in custody” for purposes of Miranda, police are not required to read a suspect their all familiar 5th Amendment warnings). But even after an arrested suspect hears “you have the right to remain silent” and relies upon that warning by standing mute, they do so at their own peril. Under Salinas, a suspect must expressly invoke their right. “I invoke my right to remain silent,” for instance. Otherwise, the person’s silence will be used as evidence of guilt by the prosecution.


Can the Court really be serious? Yep, it appears they are very serious. Again, the best of luck to all criminal suspects unschooled in the niceties Supreme Court jurisprudence. If you’re not careful, your silence just may get you convicted.