In Salinas v. Texas, decided today, the U.S. Supreme Court held that a suspect’s silence may be used against him in court – the officer can offer testimony about it and the prosecutor can argue it to the jurors, unless the suspect expressly invoked his privilege against self incrimination. The Court’s reasoning is, essentially, that there is no “right to remain silent.” There is a right not to incriminate oneself, and the suspect must expressly invoke that right. Silence in the face of questioning is not sufficient.
To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to make a timely assertion of the privilege.” Garner, 424U. S., at 655.
Under the particular facts of this case, the holding is not particularly shocking. The defendant was not “in custody” when he was being questioned. The defendant voluntarily met with the investigators and answered questions for a period of time, but then balked and did not respond to questions about whether ballistics tests would match the shotgun shells from the scene to defendant’s shotgun. The Court’s holding is limited to the facts of the case that is before it and the Court could easily have reached it’s conclusion based on the particular circumstances of this case. But they did not – they make broad statements throughout the opinion that clearly indicate they would reach the same conclusion if the defendant was in custody, and/or if he had not answered any questions at all.
In their concurrence, Thomas and Scalia argue that not only should the defendant’s silence be admissible against him and it should be permissible for the prosecutor to comment on the defendant’s silence, but also the Court should instruct the jurors that they can draw an adverse inference from the defendant’s silence.
So, although the majority of the American public understands that we have the “right to remain silent,” most law enforcement officers have a little card in their pocket that they read from which includes “the right to remain silent,” and when an interview is conducted the detective has the suspect sign a form that tells them they have “the right to remain silent,” there is no right to remain silent. What we have is the right not to incriminate ourselves, and every suspect must carefully articulate that they are exercising that right, using the correct words, before it will apply to them.