In a fascinating decision by the Supreme Court this week, the Supreme Court ruled that you need to expressly invoke the fifth amendment to enjoy its protections before you are under arrest.
The case is Salinas v Texas which I had summarized in an an earlier post here. Here's a recap of what happened:
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 controlling opinion in the case was by Justice Alito, who was joined by Justices Kennedy and Roberts. In his opinion, Justice Alito pointed out that: "A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim". He goes on to conclude:
"Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such silence is “insolubly ambiguous.” To be sure, petitioner might have declined to answer the officer’s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was 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 also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent.” But the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing."
...
"Before petitioner could rely on the privilege against self incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed.
Justices Thomas and Scalia in a separate opinion suggested that even is the petitioner had invoked the fifth amendment right, it did not preclude the prosecutors from suggesting that the petitioner's silence was evidence of guilt, since the constitution protects against being forced to give self incriminating evidence whereas the prosecutor’s comments regarding precustodial silence did not compel him to give self-incriminating testimony.
It seems though that Justices Alito, Roberts and Kennedy were unwilling to go that far.
In summary, if you want to invoke the fifth even before arrest, you need to expressly invoke that right.
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