You Have The Right To Remain Silent—Unless, Of Course, You Remain Silent

They are among the most famous words in criminal law, known to Constitutional scholars and Law & Order buffs alike: “You have the right to remain silent.  Anything you say can be used against you in a court of law.”

Now, courtesy of the Supreme Court, a caveat: What you don’t say can be used against you, too, at least in some circumstances.

A suspect’s silence during questioning about a crime can be used against him if he wasn’t in custody at the time of the interrogation, the Court ruled on Monday.

The splintered 5-to-4 decision in Salinas v. Texas—with no rationale garnering a majority—is likely to spawn as much litigation as it resolves. 

In Salinas, police invited a murder suspect to the station for a voluntary questioning session.  The suspect agreed and answered the officer’s questions for about an hour.  But when asked whether ballistics tests on his shotgun would match shells recovered from the murder scene, Salinas fell silent and “began to tighten up.”

Salinas was later charged with murder.  At trial, where Salinas was ultimately found guilty, the prosecution introduced his silence during questioning about the gun as evidence of guilt.  The state appellate courts upheld the conviction, ruling that the introduction of his silence at trial did not violate his Fifth Amendment right against self-incrimination.

The Supreme Court affirmed.  A three-member plurality—Chief Justice Roberts, Justice Alito and Justice Kennedy—concluded that the Fifth Amendment did not apply because Salinas never explicitly invoked his Fifth Amendment right.

“The critical question is whether, under the ‘circumstances’ of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment,” Justice Alito wrote for the plurality. “He was not. We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.”

Concurring in the judgment, Justices Thomas wrote that, even if Salinas had invoked his right to remain silent, the prosecution still should have been able to use his silence against him.  Justice Scalia joined in the concurrence.  Justices Breyer, Ginsburg, Sotomayor and Kagan dissented.

For defendants, Salinas highlights potential pitfalls in cooperating with authorities without the benefit of counsel.  Even where a suspect doesn’t admit to criminal activity, his own statements—or lack thereof—can still land him in prison.