By Jay Perry
The Supreme Court issued a ruling today, in Salinas v. Texas, a case discussed earlier here. The decision, a 5-4 ruling held that a suspect must expressly invoke their 5th Amendment privilege in order to be protected by that privilege. In Salinas, this means that the defendant had to speak in order to claim his “right to remain silent.” The opinion, authored by Justice Alito notes that although there is a popular perception of the “right to remain silent” the 5th Amendment does not establish such an unqualified right. An interesting fact in the case which may (or may not have) had importance was that the suspect at the time of questioning was there voluntarily and had not been give “Miranda warnings.”
The dissent questions whether the ruling will give rise to further litigation about what it means to claim the 5th Amendment right. Must one state specifically that they are invoking their 5th Amendment right? The better question in the dissent’s view is to see whether under the circumstances the defendant’s silence can be understood to be an invocation of the 5th Amendment right. It also notes the inherent difficulty with a defendant facing a question that could lead to an incriminating answer. They have two choices: answer or remain silent. Under the Salinas holding, either option could be used against them. If later at trial they take the stand to explain what happened, they would be in essence forced to act “as a witness against himself”. There is of course, a third choice:th Amendment right. However, under this ruling to invoke their 5th Amendment right, a suspect would have to specifically state that they are invoking that right. This does not appear to take into account the reality for most suspects in a criminal proceeding. While they are probably aware of the “right to remain silent”, they most likely don’t know that remaining silent is not how that claim that right.to invoke your 5
The full text of the opinion (including the dissent and a concurrence by Justice Thomas can be read here.