A blog of the Philadelphia Bar Association’s Criminal Justice Section

Scotus interiorBy Burt Rose

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The SUPREME COURT OF THE UNITED STATES has decided the case of GENOVEVO SALINAS, PETITIONER v. TEXAS, No. 12–246(June 17, 2013). JUSTICE ALITO announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and JUSTICE KENNEDY joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.


Without being placed in custody or receiving Miranda warnings, the petitioner voluntarily answered the questions of a police officer who was investigating a murder. When the officer asked whether a ballis­tics test would show that the shell casings found at the crime scene would match petitioner’s shotgun, the petitioner declined to answer. Petitioner was subsequently charged with murder, and at trial pros­ecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claimed that this argument violated the Fifth Amendment.


Petitioner’s Fifth Amendment claim failed because he did not expressly invoke the privilege against self-­incrimination in response to the officer’s question. The privilege is not self-­executing and a witness who desires its protection must claim it. Although no ritualistic formula is nec­essary in order to invoke the privilege, a witness does not do so by simply standing mute.


The plurality ruled that neither a witness’ silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege against self-incrimination. The Court has long required defendants to assert the privilege in or­der to subsequently benefit from it. Justice Alito wrote that the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself,” but there is no unqualified “right to remain silent.”


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