In what legal scholars across the Nation are calling a landmark decision, the U.S. Supreme Court on June 17, 2013, decided the case, styled Salinas v. Texas. It was a serious blow to the citizen accused, and a major win for law enforcement.

 Salinas was charged in Harris County, Texas, with Murder. He was tried and convicted. However, during the initial investigation, while he was not under arrest, police asked him to go to the station freely and speak with them about the case. Since he came on his own accord, no Miranda warnings were given to him. Upon questioning Salinas about whether or not the ballistics from the shell casings found at the scene would match his shotgun, he dropped his head and “fell silent.” Up until this point Salinas was talkative and answering their questions. This was a clear sign to them that he was guilty. 

In trial, and over counsel’s objections, the Prosecutor was allowed to comment to the jury during closing arguments that his silence as to that question was evidence of guilt. The jury summarily convicted him and his case was appealed all the way to the Supreme Court.

On appeal, the sole issue at hand was whether or not Salinas’ 5th amendment right was invoked by his choice to remain silent when asked about the ballistics matching to his shotgun. If so, then any comment on his subsequent silence would have been kept from the Jury, and they would have been none the wiser. The Court of Appeals upheld the conviction and it went to the Supreme Court. The Supremes agreed – there was no invocation of his 5th amendment right. 

Justices Alito and Kennedy wrote the majority opinion for this case. It was a scathing revelation of what not only the general public, but legal scholars everywhere had always mistakenly (as of June 17, 2013) believed to be true: that an “express” invocation of the 5th amendment is not necessary for it to apply. Merely remaining silent and choosing not to answer law enforcement questions will suffice. According to the Supremes, we were wrong. We were all wrong.

 “…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.’”

The real issue that kept cropping up in this case was that Salinas was not “in custody”. Therefore it was not a custodial interrogation, and accordingly, Miranda warnings were not necessary. So the Supreme Court with all of their infinite wisdom have decided that Salinas and others similarly situated are smart enough to utter the magic  phrase: “I wish to invoke my 5th amendment right.” Absent that language, his silence can be used as an inference of guilt.

My take on this is that we are headed for a lot more litigation involving the admission of improper statements during a defendant’s interview with law enforcement. In addition to that we are going to see law enforcement beginning to delay the reading of Miranda warnings for as long as they can, in order to use the pre-arrest, non-custodial statements against criminal suspects.

Assume you are smart enough to know not to answer questions that are going to incriminate you and as a result you remain silent, or you tell the officer, “I don’t want to answer your questions.” You head to trial and the prosecutor then elicits that information from the police officer or if there is a video of the interview and it is played out for the jury to see. What do you think the jury is going to do at that point? They are going to think you are hiding something and that is why you said that.

However, if you are wise enough and use the magic words, “I wish to invoke my 5th amendment right,” then there is no mention of that at all, and instead the jury is left contemplating why the officer didn’t ask you that question, instead of why you chose not to answer that question.

There is a world of difference between the jury knowing you willfully CHOSE not to answer a question asked by law enforcement, and a jury scratching their heads wondering why law enforcement didn’t ask a certain question.

The former will lead to potential culpability (and possibly a guilty verdict) on the defendant’s part and the latter will point to a shoddy police investigation. Yet the Supreme Court has essentially sided with law enforcement and said that if you are not smart enough to use the magic words, then you should not benefit from the privilege.

 “A suspect who stands mute has not done enough to put police on notice that he is relying on his 5th Amendment privilege.”

This has changed the landscape of the 5th amendment, as prior to this ruling, the Court of Criminal Appeals and other courts have always held that the 5th Amendment did not apply during pre-arrest questioning. The Supreme Court finally has acknowledged (at least a majority of them have) that the 5th Amendment does apply pre-arrest, however, you must expressly invoke it for it to apply.

So now that you know you have lost more of your constitutional rights that our forefathers fought and died for, what can you do about it? Well for one, you need to indoctrinate yourself, your family, your friends, and everyone else that when approached by any law enforcement agent they need to say this:


To do any less will likely come back to haunt you if you find yourself being charged with a crime. To do any more will likely be too much information, and you will rue the day you said more than those 8 words.

So you are thinking, “well since I am not likely going to ever murder someone, is this something I really need to concern myself with?” Absolutely. The far-reaching effects of this are exponential. What I envision happening now is that there is going to be a lot more interviews taking place with police officers questioning as many suspects as they can for just about any crime they are suspected of committing, in a non-custodial setting. This will enable them to avoid giving Miranda warnings to a suspect, and thus he will not ask for a lawyer to be present. Since there is no Miranda, there is no chance for the suspect to be apprised of his right to invoke his 5th amendment, unless he, himself, expressly invokes his 5th amendment right. 

The important token to be taken from this is really simple: 8 words. I. Wish. To. Invoke. My. 5th. Amendment. Right.

What do you think? Do you think the Supreme Court got it wrong? Do you think that one’s silence is enough to infer that they wish to invoke their 5th amendment right? Or, alternatively, do you think that a suspect should have to expressly state those 8 words? Sound off. Let me know…