On April 17, 2013, the Supreme Court will hear argument in Salinas v. Texas, addressing whether the Fifth Amendment privilege against self-incrimination bars the use of a defendant’s silence during pre-arrest, pre-custodial questioning as evidence of his guilt at trial when he does not testify.
The Fifth Amendment states, in relevant part, that “no person…shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has previously held, in Griffin v. California, that this provision prohibits the prosecution from using a defendant’s decision not to testify at trial as evidence of his guilt. In Miranda v. Arizona, the Court held that the same rule applies to a defendant’s choice to remain silent during a pre-trial custodial setting.
In Salinas, the Court will review the Texas Court of Criminal Appeals’ decision that because in this case “[t]here was no government compulsion in the pre-arrest pre-Miranda questioning in which [petitioner] voluntarily participated in for almost an hour,” the Fifth Amendment privilege against self-incrimination did not bar the use of Mr. Salinas’s silence in response to one of the questions posed by police as evidence at the trial at which he was convicted of murder.
Mr. Salinas argues that the principles underlying the Court’s decision in Griffin apply equally to his silence because a person in his situation faced with a potentially incriminating police question in a pre-arrest, non-custodial situation is subjected to the same dilemma that the defendant in Griffin faced if his failure to testify could be used against him at trial: If he answers, he might be creating evidence against himself, but if he does not, his silence could be used against him at his trial with severely prejudicial effect. He cannot avoid providing self-incriminating evidence. Accordingly, as in Griffin, if his silence can be used at trial, he is being “compelled to be a witness against himself” in violation of the Fifth Amendment.
Salinas maintains that the principle he urges is necessary to maintain the accusatorial criminal justice system established by the Constitution, which places the burden on the government to establish guilt, and the Fifth Amendment’s purpose to bar wrongful convictions by excluding the use of an accused’s silence that, although highly ambiguous, is nevertheless treated by jurors as powerful evidence of guilt. Salinas is supported by amicus briefs from, among others, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, who argue that permitting the use of such silence at trial would provide police with an incentive to circumvent Miranda’s warnings and protections by questioning a suspect prior to arrest or custody. Amici supporting Salinas also include the conservative, libertarian Cato Institute.
Texas responds that Salinas’ brief silence was not an invocation of the privilege against self-incrimination, that the pre-arrest, non-custodial police interview in which Salinas voluntarily participated did not involve any government compulsion, and that accordingly, the protections of the privilege were not triggered. Twenty-six states and the United States submitted amicus briefs supporting Texas.
The United States acknowledges that the self-incrimination provision applies to pre-arrest, pre-custodial questioning but maintains that its protections are triggered only by the provision’s express invocation in response to a potentially incriminating question or by a refusal to participate at all in a requested police interview, but not, as in this case, by mere silence.
The Court’s decision of this case could have important consequences for both civil liberties and criminal law enforcement.
Please read on for the details of the case, the contrasting arguments, and our reflections and conclusions concerning the likely outcome.
This case arises out of the fatal shootings of brothers Juan and Hector Garza in late 1992 in their apartment, where they had held a party the night before. Shotgun shell casings from the rifle used to shoot the brothers were the only physical evidence on the scene. After learning that Salinas had attended the Garza’s party the night before the shooting, the police visited Salinas’ apartment, where he lived with his father, explained that they were investigating a murder, and obtained written voluntary consent from Salinas and his father to search their apartment. During this search, Salinas volunteered that his father owned a shotgun, which his father then produced and provided to the police.
The police asked Salinas if he would come down to the police station to talk and to provide “elimination fingerprints” and “to take photographs and clear himself as [a] suspect.” Salinas agreed to do so. At that time, Salinas was not under arrest or in custody. The police questioned Salinas in connection with the murders for close to an hour. Salinas responded to the officer’s questions with one exception: when asked by the officer if ballistics testing was likely to show that the shotgun shells recovered at the scene of the murder would likely match the shotgun the police had retrieved from the Salinas residence, Salinas said nothing. After this, the officer asked Salinas several more questions. Salinas was then held by the police on some unrelated outstanding traffic warrants. The next day, ballistics testing confirmed that the gun retrieved from the Salinas residence was the murder weapon.
Salinas was held for several days on suspicion of murder, before being released by the district attorney’s office, which felt the evidence was insufficient to sustain a murder charge. In January 1993, about two months after Salinas’ release, an informant came forward who claimed that shortly after the shooting Salinas had confessed to him that he had killed Juan and Hector. Police filed charges against Salinas and attempted to arrest him, but were unable to find him. About 14 years later, in November 2007, police located Salinas living under a different identity. He was arrested and brought to trial.
Salinas’ first trial ended in an 11–1 hung jury. Prosecutors elected to re-try Salinas. During the first trial, the prosecutors only made passing references to Salinas’ silence during the earlier interview, but at his second trial the prosecutor sought to introduce testimony from one of the police officers that Salinas had remained silent when the question was posed to him during his police station interrogation about whether ballistics testing was likely to show that the shotgun shells at the scene of the crime matched the rifle Salinas produced from his residence, and instead “[l]ooked down at the floor, shuffled his feet, bit his lip, clinched his hands in his lap, began to tighten up.” Salinas objected to the introduction of that evidence on Fifth Amendment grounds. The trial court overruled the objection, and the evidence was admitted. During his closing argument, the prosecutor emphasized that Salinas’ refusal to answer the question demonstrated his guilt because an innocent person would have responded to the question by emphatically rejecting that suggestion. Salinas did not renew his earlier objection to use of his silence as evidence against him at that time. Salinas was found guilty of murder and sentenced to 20 years’ imprisonment and a $5,000 fine. The state dismissed the charge of killing Hector, while reserving its right to re-file if the judgment regarding Juan is reversed.
On appeal to the Texas Court of Appeals, Salinas argued that the prosecution’s use of his pre-arrest silence violated his Fifth Amendment right against self-incrimination, relying on the Supreme Court’s rulings in Griffin and Miranda. The Texas Court of Appeals affirmed the judgment against Salinas. The court acknowledged that numerous state and federal appellate courts had held that pre-arrest, pre-Miranda silence is not admissible evidence. The court nonetheless chose not to follow them and ruled for the state, reasoning that the communications at issue were purely voluntary, and accordingly, that Salinas was at no point “compelled” to speak. The Texas Court of Criminal Appeals affirmed, agreeing that the Fifth Amendment protection against self-incrimination prohibited the use of silence only where it occurred in circumstances involving government compulsion such as those involving the physical or psychological compulsion involved in Miranda. In support, the Texas court cited Jenkins v. Anderson, in which the Supreme Court allowed the prosecution to use a defendant’s pre-arrest silence for impeachment purposes. The Texas Court of Criminal Appeals denied Salinas’ request for rehearing.
The Supreme Court granted review of Salinas’ petition for certiorari to address the question: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda warnings.
Salinas’ Arguments in the Supreme Court
Before the Supreme Court, Salinas argues that the Griffin rule, barring a prosecutor from using as evidence a defendant’s decision not to testify, should apply to Salinas’ silence in response to the police officer’s question about the shot gun shells during the pre-arrest, non-custodial interview.
In Griffin v. California, the Supreme Court held that the prosecution may not use as evidence a defendant’s failure to testify at trial. The Court held that the use of such silence penalizes the defendant for his exercise of the rights granted under the self-incrimination provisions of the Fifth Amendment. Salinas reads Griffin as reflecting the compulsion that arises from the impossible dilemma facing the defendant if his failure to testify can be used at his trial. He must either respond to the questions, thereby providing potentially self-incriminating information, or remain silent, and have that silence later used against him as substantive evidence of his guilt at trial. Because he is unable to avoid incriminating himself, he is, therefore, being compelled to be a witness against himself. The same dilemma faces someone like Salinas who is asked a potentially incriminating question by police in a pre-arrest, pre-custodial situation, if his silence can be used against him at trial. And like Griffin, he is being compelled to be a witness against himself in violation of the Fifth Amendment.
Moreover, Salinas argues, extending the Griffin rule to pre-arrest, non-custodial interviews would further the Griffin rule’s two purposes: First, it recognizes our constitutional system’s rejection of the inquisitorial system of criminal justice in which the government seeks to make its case from evidence obtained from the accused and our Constitution’s choice of an accusatorial system of justice, which imposes the burden on the government to make its case against the defendant without assistance from the accused. Second, it protects the innocent from wrongful convictions by excluding evidence of silence that is highly ambiguous but unduly prejudicial. Such silence or refusals to answer the police can be explained by many reasons other than guilt — for example, by timidity, nervousness, hostility to the police in certain segments of society, the fear of being confused by the police questioning into saying something incriminating, or fear of revealing intimate details about one’s life. Yet, such evidence has disproportionate power to influence a jury against the defendant. For this reason numerous state and federal courts have refuse to allow its admission under their rules of evidence.
Salinas rejects the argument that Miranda limited the privilege against self-incrimination to post-custodial situations. Salinas emphasizes that the Supreme Court has already ruled that the right to remain silent applies outside of the custodial context, such as during a traffic stop, during a criminal investigation, and in testimony before a congressional investigating committee. Salinas also argues that the text of the Fifth Amendment supports the conclusion that its protection against self-incrimination is not limited to custodial or post-arrest situations, because unlike the Sixth Amendment, which provides enumerated rights, such as the right to counsel, only to the “accused,” the Fifth Amendment’s protections apply to any “person.”
Salinas also points to the ways that a rule permitting the prosecution to use pre-custodial silence against a defendant could be abused. An officer could effectively coerce an individual to speak by informing him that remaining silent could be used as evidence against him in a trial. Officers would also have an incentive to delay arrest and thereby delay the need to provide a Miranda warning.
Salinas also distinguishes Jenkins v. Anderson, cited by the Texas court for the proposition that the Supreme Court permits a defendant’s silence to be used against him in a pre-custodial context. In Jenkins, defendant testified at trial that he had stabbed someone in self-defense. To undercut that testimony the prosecutor noted that Jenkins failed to notify the police of the incident for two weeks.
Salinas notes that in Jenkins pre-arrest silence was used as impeachment testimony only, and as the Court explained, the defendant therefore had waived his privilege against self-incrimination by taking the stand. Salinas did not testify in the criminal proceeding, so he did not waive his right against self-incrimination. Moreover, the Court also explained that allowing the use of that silence for impeachment “advances the truth-finding function of the criminal trial” and ferrets out perjury. Here, Salinas argues, neither purpose is served because he did not testify at trial. Salinas also notes that the defendant’s “silence” in Jenkins — his failure to report the incident to the police for two weeks — was not in response to police questioning, unlike Salinas’ silence, in which the dilemma compelling him to incriminate himself if silence could be used at trial was attributable to the police questioning.
Salinas emphasizes finally that the prejudice to him from the use of his silence as evidence is clear from the difference in result between the first trial, in which the jury failed to reach a unanimous verdict, where the prosecution made very few references to his silence, and the second trial, in which Salinas was convicted, where the prosecution highlighted his silence.
In response, the state of Texas argues that Salinas’ “selective” and “transitory,” failure to respond only to one question of many in an hour-long interview to which he voluntarily submitted did not involve an invocation of the Fifth Amendment privilege against compelled self-incrimination. In support, Respondent cites the Court’s recent holding that silence alone in response to questioning does not constitute an invocation of the Fifth Amendment privilege against compelled self-incrimination and that to claim its protection it must be affirmatively invoked. Because Salinas did not affirmatively invoke the privilege, Texas argues, Salinas was not entitled to its protection.
Moreover, Texas argues that although Salinas did not respond verbally to the question, he did react by looking at the floor, biting his lip, and tensing up. Respondent argues that such conduct should be viewed as a non-verbal “response” rather than an assertion of the right to remain silent and that it would be admissible as non-verbal evidence. Further, because Salinas participated in the questioning voluntarily, his non-verbal response was not compelled testimony protected by the Fifth Amendment. On the other hand, Texas argues, if Salinas’ silence is viewed in isolation from his non-verbal conduct, then it conveyed no information and was therefore not “testimonial.” As such, Texas maintains, it was not covered by the Fifth Amendment privilege, because the privilege purportedly applies only to testimony.
Texas further argues that Miranda shows that non-custodial police questioning is not considered coercive and therefore that the use at trial of silence in response to questions in that non-custodial setting does not involve government compulsion and cannot be viewed as an infringement of the privilege any more than the admission at trial of statements made in such a setting would be.
Texas also claims that the Court has already decided in Jenkins that the use at trial of a defendant’s pre-arrest, pre-custodial silence is not an infringement of the privilege against self-incrimination. Texas asserts that, like Jenkins, who waived his privilege by voluntarily testifying at trial, Salinas voluntarily participated in the interview. Moreover, Texas notes, the Court in Jenkins, presented with the argument that a person facing arrest will feel compelled to speak if his silence may later be used to impeach him at trial, rejected the idea that the Constitution “forbid[s] every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.”
Texas then argues that the Griffin rule was always intended to be limited to the trial context, because it is meant to further the presumption of innocence and that this presumption is not at issue in a voluntary, pre-arrest, non-custodial police investigation. Texas claims support from the history of the Fifth Amendment as reflecting an intention to ban the kind of compulsion used by the Star Chamber, where witnesses were required to respond to questions. Texas also notes that the cases relied upon by Salinas to support a right to silence in non-trial, non-custodial situations all involved circumstances were the individual was forced by law to testify or suffer some form of punishment such as civil or criminal contempt or loss of a government job.
Texas also argues that unlike Griffin, the admission of the evidence of Salinas’ silence was not adverse and that the prosecutor’s closing comments are not in issue because they are allegedly not within the issues framed before the Texas appellate court.
Texas finally concludes by stating that, even if allowing the prosecutor to use Salinas’ silence against him was an error, it was harmless. The evidence against Salinas, Texas argues, was so powerful that he would have been convicted without the reference to Salinas’ silence.
The Brief Amicus Curiae of the United States
The United States’ amicus brief focuses primarily on Salinas’ failure to expressly invoke the Fifth Amendment privilege. It maintains that his brief silence in the midst of the interview cannot be treated as an invocation of the privilege, citing cases that the privilege must be clearly invoked to obtain its protections. Griffin is an exception, the United States explains, but that is because the failure to testify at trial is understood unequivocally to be an invocation of the privilege. In other circumstances, like those involved here, the government asserts, Supreme Court precedent, requires an express invocation of the privilege to put the government on notice of its invocation.
Notably, the United States observes that Salinas could have protected himself against use of his silence at trial if he had expressly invoked the privilege in response to the question posed by the police about the shot gun shells or if he had simply declined to participate in the interview altogether, which also would have been considered an invocation of the privilege. Instead, Salinas merely failed to answer, giving rise, the Solicitor General asserts, to a permissible inference that he was trying to formulate an exculpatory response. Moreover, the United States argues, the option to expressly invoke the self-incrimination provision would have enabled Salinas to have avoided the dilemma that he claims to have faced.
In his Reply Brief, Salinas addresses both Texas’ and the United States’ arguments.
Responding to Texas’ argument that there is an absence of the kind of psychological or physical coercion present in Miranda or in cases involving punishment for failure to testify, Salinas observes that, like the Texas court, Texas simply misunderstands the kind of government compulsion involved in Griffin or in this case. The compulsion in a Griffin claim lies in the fact that if the prosecutor can comment at trial on the defendant’s silence, the defendant’s only choice is to provide potentially incriminating testimony or remain silent and create highly prejudicial evidence against himself; the witness is, therefore, unable to avoid providing the government with evidence to use against him in his criminal prosecution and is, therefore, compelled to be a witness against himself. The same answer applies to Texas’ argument that Salinas voluntarily participated in the interview.
Salinas also rejects the argument that the prosecutor’s jury argument emphasizing Salinas’ silence is outside the scope of the question on which certiorari was granted, pointing to the broad language of the question itself and language in the Petition for Certiorari, as well in the Texas court’s ruling. It also rejects Texas’ argument that only a non-verbal communication is involved, quoting the prosecution’s repeated reference at the trial to Salinas’ silence and “failure to answer the question” and its failure at trial to claim that Salinas made a non-verbal response. Similarly, Salinas argues that Texas’ assertion that Salinas’ silence is not “testimonial” is contradicted both by the prosecution’s treatment of his silence as disclosing incriminating information and by Supreme Court precedent.
The bulk of the reply is directed at the argument that an express invocation of the privilege was required when the question concerning the shotgun shells was posed to Salinas by the police, and in particular, to this argument as made by the brief submitted by the Solicitor General on behalf of the United States.
Salinas first notes that both Griffin and Miranda demonstrate that an express invocation of the privilege is not needed to preserve the ability to enforce the Griffin rule at trial. All that is required is that the defendant exercise the privilege by invoking it at trial. Salinas distinguishes the express-invocation jurisprudence invoked by the Solicitor General, as applicable only to settings where it appears more likely than not that a person is not seeking to avoid incriminating himself either in making a statement or in failing to respond. In such cases only is the witness required to expressly invoke the privilege in advance to “put the government on notice.” Distinguishing the cases relied upon on by the Solicitor General on this basis, Salinas argues that in this case where the police were aware they were obviously posing a potentially incriminatory question, there was no reason to require express invocation of the self-incrimination provision in advance of the trial.
Salinas also argues that the Solicitor General’s position would result in complicated litigation over what constitutes an “express invocation” and difficult questions concerning the regulation of police conduct, such as police statements to suspects that silence could be used against them at trial so as to induce them to speak. Salinas also argues that the express invocation requirement in situations like those involved here would encourage police to engage in misleading conduct to induce suspects to submit to pre-arrest interrogation. Salinas points to statements made by the police in this case conveying a misleading impression that the purpose of his interview was to “clear him as a suspect” and obtain “elimination prints,” but then switching in the midst of the interview to a question about potential ballistics evidence that would link Salinas directly to the murder.
Finally, Salinas maintains that Texas’ harmless error argument should be left for remand to the Texas courts.
Conclusions and Reflections
The position taken by Texas, the United States, and the State amici, if accepted, raises a real potential for police abuse and could undercut the protections afforded in Miranda. Salinas makes persuasive arguments as to why Griffin-type compulsion is present if silence in response to a potentially incriminating question during a pre-arrest interview can be used by the prosecution at trial. Neither Texas nor the United States advance any meaningful policy that would be served by requiring express invocation of the Fifth Amendment privilege against self-incrimination to protect against the use of pre-arrest silence in cases like this one.
In the circumstances, it is inescapable that the police understood the incriminating potential of their question: the question about the shotgun shells was a not-too-subtle way of asking Salinas whether the shotgun he produced from his home was the gun used to kill the Garza brothers or even more directly, whether he committed the murders. That is precisely how the prosecutor interpreted the question and Salina’s silence in response, in his argument to the jury. In fact, the Solicitor General’s assertion that the silence permissibly justifies the inference that Salinas was trying to find an exculpatory answer is a recognition of the potentially incriminating nature of the question. The police needed no express invocation of the privilege to be put “on notice” that their question was potentially incriminating and that the failure to respond reflected Salina’s unwillingness to incriminate himself. That is the right the Fifth Amendment afforded him, regardless of whether he was sophisticated enough to know that or to employ the magic words Texas and the Solicitor General insist he had to employ.
Allowing the use at trial of silence in circumstances like these, far from serving any legitimate law enforcement purpose, is profoundly unfair, given the ambiguity of such evidence and the severe prejudice its admission entails. Salinas persuasively shows, from the facts of his own case, that requiring an express invocation of the privilege is likely to be merely a trap for the unwary or unsophisticated and gives police an incentive to lull or mislead suspects to relinquish their right to remain silent, before there is an obligation to provide a Miranda warning.
Nevertheless, the outcome here cannot be predicted with any confidence. Once again, Justice Anthony Kennedy may be the decisive vote. In several criminal justice cases last Term, Justice Kennedy disclosed a willingness to consider the realities of the criminal justice process as well as the needs of justice and fairness to the accused. The other conservative justices have a more formalist and more rights restrictive approach. The Solicitor General’s “express invocation” argument may have more appeal to them. It remains to be seen how the Justices, and particularly Justice Kennedy, respond to Salinas’ sensible and pragmatic reading of the “express invocation” jurisprudence and the unfairness of allowing silence in response to pre-arrest, pre-custodial police questioning to be used as evidence of guilt at trial.
 No. 12–71.
 Griffin v. California, 380 U.S. 609, 615 (1965).
 Miranda v. Arizona, 384 U.S. 436, n.8 (1966).
 Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012)
 447 U.S.231 (1980)
 Berkemer v. McCarty, 468 U.S. 420 (1984).
 Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969) (police may request that an individual respond to questions, but the individual is free to decline to answer).
 Watkins v. United States, 354 U.S. 178, 188 (1957); see also Malloy v. Hogan, 378 U.S. 1, 14 (1964) (state gambling inquiry by a court-appointed referee); Garrity v. New Jersey, 385 U.S. 493, 497 (1967) (inquiry by a state attorney general during an investigation); Marchetti v. United States, 390 U.S. 39 (1968) (IRS tax return that could require disclosure of information that could be used as a basis for a state prosecution for illegal gambling).
 447 U.S. 231 (1980).
 Texas’ brief opens by stating that in Salinas’ first trial the record revealed that Salinas had received and then waived his Miranda warnings. This evidence was not introduced on the record in the second trial and is therefore not a part of the record on appeal. Texas further claims that while Salinas objected to the testimony about his silence at trial, he did not preserve that objection for the prosecutor’s statements during closing arguments.
 Berghuis v. Thompkins, 130 S.Ct. 2250 (2010).
 447 U.S. at 236.
 See, e.g., Justice Kennedy’s opinions in Lafler v. Cooper , 132 S. Ct.1376 (2012) and Missouri v. Frye, 132 S. Ct.1399 (2012) (5–4 decisions holding that the right to effective assistance of counsel applied to ineffective advice in the plea bargaining process causing defendants to reject a plea bargain that proves more favorable than a result at trial or a later plea); Dorsey v. United States, 132 S. Ct. 2321 (2012) (a 5–4 decision in which Justice Kennedy joined the majority, holding that the crack/cocaine sentence reduction applied retroactively to defendants sentenced after the law’s effective date but committing the offense before that date).
 See the dissenting opinions in the cases cited in the preceding footnote.