Do You Have the Right to Remain Silent? The Law in Light of Salinas v. Texas

Generally speaking, Americans believe they have the right to remain silent.  However, in the case of Salinas v. Texas, the Supreme Court has stated that is not necessarily the case (and even more terrifying is that this case has gotten so little attention from Americans as a whole).  But before getting to Salinas v. Texas, a basic explanation of Miranda v. Arizona (and the Miranda Rights) must be set forth.

(Understand that there are many details, requirements, and exceptions that can apply in a Mirandizing issue with a case.  Each of these will not be discussed here.  Rather, a very basic overview is set forth here so as to set up the background to Salinas v. Texas).

In Miranda v. Arizona, the Supreme Court ruled that police interrogations of individuals without notifying them of their right to counsel and their right to not incriminate themselves (i.e., the right to remain silent) was a violation of the United State’s Constitution’s Fifth Amendment.  Of note, this refers specifically to “custodial interrogations,” where a suspect is not necessarily under arrest, but in a situation where the suspect is not free to leave.  The ruling in Miranda v. Arizona gave rise to what is commonly known as the “Miranda Rights” or “Miranda Warnings,” which might sound familiar to you:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.

Note that this is only one version of the Miranda Rights – in Miranda v. Arizona, the Supreme Court did not set forth the exact wording that must be used, but ruled that whatever wording a police officer uses has to adequately notify the individual of his or her rights to counsel and to remain silent.  Thus, if you or someone you know is ever Mirandized, you will not necessarily hear any particular set of words.  If an individual’s Miranda Rights are indeed violated, the remedy is usually that the obtained testimony is inadmissible at trial.

Then, 47 years after the Supreme Court’s ruling in Miranda v. Arizona, the Supreme Court ruled in Salinas v. Texas (Salinas being decided on June 17, 2013).  The facts of Salinas v. Texas are that in 1992, Genovevo Salinas agreed to go in for questioning connected to two homicides.  After about an hour of questioning, officers asked Salinas whether shotgun shells found at the scene of the crime would match Salinas’s gun at home.  At this point, Salinas remained silent and refused to answer (Salinas “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up”).  When Salinas was charged with the murders in 1993, he could not be located and it was not until 2007 when police discovered him living in Houston.  At trial, prosecutors introduced evidence of Salinas’s reaction to questioning as evidence of guilt. Salinas was found guilty and received a 20-year sentence.

On appeal, Salinas argued that use of his silence as evidence of guilt was a violation of his Fifth Amendment right against self-incrimination.  However, the Supreme Court disagreed.  In a very split decision (5-4), the Court issued what is known as a “plurality decision.”  This is where a majority of the Justices agree that they should rule one way or another, but for different reasons.  In the case of Salinas v. Texas, 5 Justices ruled against Salinas for two different reasons.

In the decision published by Justice Alito, Chief Justice Roberts, and Justice Kennedy, it was stated that it is long established that an individual wishing to be protected against self-incrimination must explicitly claim it.  The Justices recognized that there are two exceptions under which an individual does not have to explicitly invoke their privilege (first, “that a criminal defendant need not take the stand and assert the privilege at his own trial,” and second, that “a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary”), but stated that Salinas did not meet either exception (as Salinas went in for questioning voluntarily, the Justices stated that there was no governmental coercion in obtaining Salinas’s testimony).  Salinas asked that the Court adopt a third exceptions, that a witness need not invoke his or her privilege in cases where “a witness stands mute and thereby declines to give an answer that officials suspect would be incriminating.”  However, the Justices declined to adopt such an exception.

In the Concurring Opinion of Justice Thomas and Justice Scalia, these Justices recognized the Court’s opinion in Griffin v. California (where the Court ruled that “the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify”), but stated that it was their opinion that Griffin v. California “is impossible to square with the text of the Fifth Amendment.”  They went on to state that a Defendant’s Fifth Amendment right against “be[ing] a witness against himself” is not violated when an adverse inference is drawn from their silence because, in that situation, “[the] defendant is not [being] ‘compelled . . . to be a witness against himself.'”

Finally, Justices Breyer, Ginsburg, Sotomayor, and Kagan disagreed with the Court’s opinion and issued a Dissenting Opinion.  In the Dissent, these Justices argued that silence should have been enough to invoke Salinas’s privilege against self-incrimination.  Further, they pointed out that the Court’s ruling would create problems for less educated individuals, who might not know to invoke their privileges, or might not know the exact words to use.

So the question I pose is where does this leave us on our right to remain silent.  3 Justices state you have to explicitly invoke your right (unless you are a Defendant at trial or you did not invoke your right due to coercion on the part of the government).  2 Justices state that remaining silent should be able to be used against you at trial.  And 4 Justices state that you should be able to remain silent, period.  Salinas v. Texas raises at least two major issues to worry about in this author’s mind: (1) a concern raised in the Dissenting Opinion,  that some Defendants will not know to invoke their privilege or the words to use to do so; and (2) a concern with the ramifications of the Concurring Opinion.

As to the first concern, it seems that you have the right to remain silent (i.e., to not incriminate yourself) as long as you explicitly invoke this right.  This would mean that a witness can be silent as long as (s)he explicitly states that (s)he is not answering questions because (s)he is invoking the Fifth Amendment and his or her privilege against self-incrimination.  As pointed out by the Court, we do not have an absolute right to remain silent.  And this is fine for those of us who now know this, but the concern remains of how many witnesses will not realize they have the right to remain silent or how to invoke that right.

As to the second concern, this author feels compelled to respectfully, but strongly, disagree with Justice Thomas’s and Justice Scalia’s Dissenting Opinion.  As stated in Griffin v. California (the case that Justices Thomas and Scalia recognize), a prosecutor or judge should not be able comment on a Defendant’s refusal to testify.  Essentially, if one’s remaining silent is going to be construed as an admission of guilt, then one does not really have the option to remain silent – the Defendant would either have to testify or be presumed guilty!  As pointed out in Griffin v. California, allowing a prosecutor or judge to even comment on a defendant’s choice not to testify would be to invite the jury to presume guilt from that silence, which resounds of the very type of system the Fifth Amendment is designed to protect against.  It is for these reasons that I find the Concurring opinion to be the most troubling part of Salinas v. Texas.

In conclusion, the take-away from this post – unless you are a defendant in a trial or the victim of governmental coercion, you might not have the right to remain silent until you explicitly state that you are claiming that right.


The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee.  If you or someone you know need an attorney, please click here for Mr. Lee’s contact information and contact him today for a free consultation.  Also, please feel free to visit Mr. Lee’s website, or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

Copyright © 2013. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee.


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