Is silence protected?

Last week there was one surprising case argued before the Supreme Court that really got me thinking.  The case is Salinas v Texas.  Here's a wonderful summary of the case on the scotusblog.com:

The case goes back to the murders in December 1992 of the Garza brothers in the Houston apartment where one of them lived.  At the scene, officers found discarded shotgun casings.  A neighbor told police that he had heard shots, and saw a dark auto leaving the scene.  Others told the police that there had been a party at the apartment the night before the shooting, and that Genovevo Salinas might have been there.

Police went to Salinas’s house, and they discovered that his mother had a car that may have matched the one seen leaving the night of the shooting.   The police told of the shootings, and received permission to search.  Salinas’s father gave the officers a shotgun.

The police asked Salinas to go with them to the police station, so they could get fingerprints that would eliminate him as a suspect.  He went along voluntarily, and at no time was under arrest.  During an interview that lasted for about an hour, the officers questioned Salinas about others at the party, and he answered those questions.

One officer then asked him if the shotgun given them by his father would match the shell casings found at the scene.  Salinas looked down, but did not answer.  He was then put under arrest for an outstanding traffic ticket, as a way to ensure that he stayed at the police station.  They got a ballistics report showing that the shell casings matched the shotgun.   At that point, however, police opted not to press any charges, and actually told Salinas he was free to leave.

Later, a friend of Salinas went to the police station, and told the officer that Salinas had told him he did the killing.  Salinas was charged with two counts of murder.  But he was not taken into custody at that time and, in fact, was not arrested until some fourteen years later, when he was located elsewhere in Texas, living under a new name.

At the trial, prosecutors offered the testimony of the friend who implicated Salinas in the crimes, the potential link of the mother’s car to the crime, and the ballistic test results.  In a closing argument, a prosecutor made a brief mention of Salinas’s refusal to answer the question about what the ballistics test would show.  Salinas did not take the stand at the trial.  The trial ended in a mistrial; the jury could not agree on a verdict.

Put on trial a second time, the same evidence was offered by prosecutors.  The defense objected to the police statement that Salinas had remained silent when asked about the shell casings and the gun.  A defense lawyer said Salinas had a right to remain silent at that time, and had no duty even to talk to the police.  The judge rejected the protest.  Salinas did not testify.

In closing argument, a prosecutor stressed again to the jury that Salinas had remained silent when asked about the shell casings and the gun.  He told the jurors that an innocent person would have protested that the gun was not his, and that he was not at the scene.   The jury convicted Salinas, and he was sentenced to twenty years in prison.

The question before the court is whether in a ]pre-custody situation, a person's silence is protected under the Fifth Amendment and whether it can be used against him or her.  If its protected then stressing Salinas' silence was a violation of his rights.  The government is arguing that people have to expressly invoke the fifth amendment.  Salinas is arguing that all silence is excluded.

Now, when I read this, I thought to myself the man looked guilty what's the problem.  However, when I heard the oral arguments it got me thinking.  People keep hearing in movies and on TV that they have the right to remain silence.  If you go with the government's argument, how is a person to know how to invoke the fifth amendment?  And, if you permit a non answer to infer suspicion, can the police badger you with questions such as: Did you murder her? etc. and use any question you fail to answer as suspicious in court?  Fascinating!

Curious to see how this will be decided.