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
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
to invoke your 5
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
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
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.
The full text of the opinion (including the dissent and a concurrence by Justice Thomas can be read here.