Salinas v. Texas: The Fifth Amendment During Pre-Arrest Interviews

JURIST Guest Columnists Hank Asbill, Brian Murray and Andrew Pinson of Jones Day argue that the Supreme Court's recent decision in Salinas v. Texas leaves a host of critical questions unanswered...

When we previewed the Supreme Court's oral argument in Salinas v. Texas this past March, we framed the plain-English question at stake like this:

The ubiquitous Miranda warning explains that "you have the right to remain silent." It then reminds you that when government agents ask you questions, anything you do say "can and will be used against you in a court of law." But what if you don't say anything? What if government agents approach you and ask you a question, and you refuse to answer? Can your silence in response to their questioning also "be used against you" in court if you're later prosecuted for a crime?

After the Supreme Court handed down a fractured 3-2-4 decision in the case last week, about all that is clear is the ultimate answer to that question: five justices agree that if law enforcement questions a defendant before he's arrested and he responds to any question with silence, then the prosecution may comment on and use that silence against the defendant at trial.

But the fragmented nature of the judgment affirming the judgment against Genovevo Salinas creates a significant wrinkle which, until ironed out in the lower courts (or the Supreme Court in future terms), raises important theoretical and practical questions about the Fifth Amendment privilege against compelled self-incrimination in the context of pre-arrest police interviews.

The problem is this: while we know that prosecutorial comment on pre-arrest silence is now permissible at trial, we don't really know why. The two opinions spliced together to reach that judgment took such divergent approaches to deciding the question that this naked judgment is really all they share.

Justice Alito, joined by the Chief Justice and Justice Kennedy, took a narrow (and somewhat unexpected) route to that judgment grounded in the Court's rules about invoking the Fifth Amendment privilege. He started from the premise that a witness must expressly invoke the privilege to secure its protections. A witness does not expressly invoke the privilege, however, by "simply standing mute" in response to police questioning (like Salinas did). To be sure, he explained, the Court has recognized two exceptions to the express-invocation requirement: silence suffices to invoke the privilege for a defendant who declines to take the stand at trial (Griffin v. California), and where some form of official compulsion denies the witness a voluntary choice to forfeit or invoke the privilege (Miranda v. Arizona).

But neither of those "exceptions" apply to a voluntary police interview. Salinas, by remaining silent in response to police questioning, failed to invoke the Fifth Amendment privilege, and the prosecution was therefore free to use that silence against him during his criminal trial.

Justice Thomas, joined by Justice Scalia, agreed that a prosecutor may use "a defendant's precustodial silence as evidence of his guilt," but for a very different reason. Justice Thomas explained that even had Salinas invoked the privilege, it would have been a fruitless endeavor; the privilege simply doesn't apply to a "precustodial interview." Why? Well, those familiar with the Court's criminal procedure cases know that both Justices Thomas and Scalia adhere to the textualist view that the Fifth Amendment privilege only protects against government action that actually "compel[s]" a person "to be a witness against himself." Under this view, Griffin was wrongly decided because the threat of a prosecutor's adverse comments at trial does not "compel" anyone to testify. So too in in the context of a precustodial interview.

Justice Thomas's reasoning is not controlling, and Griffin isn't in realistic danger (barring a significant shift on the Court). What's important is that Justices Thomas and Scalia concurred only in the judgment and conspicuously avoided opining on whether, assuming the privilege was available, Salinas's silence would have sufficed to invoke it. Thus, while five justices agree that Salinas couldn't rely on the privilege, only three think it's because he failed to expressly invoke it, and two think it's because the privilege wasn't available to invoke.

These non-overlapping grounds for decision make quick mincemeat of a Marks v. US analysis, which asks which "[m]embers who concurred in the judgments on the narrowest grounds" in order to determine the holding of the Court in a fragmented decision. Justice Alito's rationale, although less sweeping than that of Justice Thomas, is by no means necessary to, included in, or logically entailed by Thomas's reasoning. (Indeed, Justice Thomas stated that Salinas's claim would fail even if he had invoked the privilege.) In short, with Salinas, the Court handed down a little more than a judgment sans rationale.

For everyone except Genovevo Salinas (whom, with five Supreme Court justices voting to affirm the judgment against him, is out of luck), this leaves a lot of questions. First, does the Griffin rule — which says the Fifth Amendment privilege proscribes prosecutorial comment on a defendant's refusal to testify — ever apply to pre-arrest, pre-Miranda interviews with law enforcement? Many thought the Court took the case precisely to answer that question. But all Salinas tells us is that the privilege doesn't extend to a witness who "stands mute" in response to a pre-arrest interview question. So a witness can ostensibly get past Justice Alito's reasoning in Salinas by invoking the privilege, but it remains to be seen whether he invokes non-imaginary protection by doing so. Justices Thomas and Scalia would say no, the four dissenters would say yes, and it's not clear what Justices Alito, Roberts, and Kennedy think; even if those three justices would agree that Salinas's silence failed as an invocation, it doesn't necessarily follow that any or all of them believe the protection of Griffin would have applied given an effective invocation.

Even assuming a majority of the Court would hold there is a privilege to invoke during a precustodial interview, other questions persist: what collection of words are required to invoke it? (Magic words?) Once "invoked," what happens? Do the investigators have to stop questioning? And taking a step into the real world, how is the typical witness who hasn't been advised of his rights (remember, this interview happens before Miranda requires that) to know that he needs to invoke the privilege and how to do so effectively? Should it matter that the typical witness will have no idea that he has to say something to exercise his right to remain silent, whatever protection that "right" entails before he's arrested?

Certainly it's not unusual for the Supreme Court to answer one question and leave the details to be worked out in the lower courts. But these are not mere details. What is a person supposed to do to maximize his protection against self-incrimination if approached by law enforcement for questioning? (And what should a lawyer tell her client to do in that situation?) Speaking, with its ever present risks of inadvertent incrimination, is still out. And Salinas puts silence on the blacklist too. The witness may or may not be able to invoke some degree of protection by "expressly invoking" it, however one does that. Or maybe not.

After Salinas, and before the Court brings clarity in a future case, perhaps the best policy is avoidance until arrest. If the cops knock at your door? Pretend you're not home. If they call? Let it go to voicemail. (Hopefully you have caller identification.) E-mail? Delete and ignore. And if an officer ambushes you in public? Don't make eye contact. Too late? Well, perhaps that's the next case.

Hank Asbill is a partner at Jones Day with extensive first-chair jury trial and appellate experience, successfully defending individual and corporate clients for more than three decades against a broad spectrum of criminal and civil charges. Hank is a Fellow of the American College of Trial Lawyers and an Advisory Committee member of the National Association of Criminal Defense Lawyers' White Collar Criminal Defense College. He has served in the past as two-term director of NACDL, president and Fellow of the American Board of Criminal Lawyers, and president of the D.C. Association of Criminal Defense Lawyers. He holds a J.D. from Georgetown University and an A.B. from Princeton University.

Brian Murray is the founding partner of Jones Day's Issues & Appeals Practice in Chicago. Brian has extensive trial and appellate litigation experience, representing clients in complex litigation and class actions in federal and state courts across the country. He also teaches Complex Litigation at the University of Chicago Law School and serves on the Seventh Circuit Bar Association and the American Inns of Court Foundation Board. He is also a former law clerk to Justice Antonin Scalia, and holds a J.D. and a B.S. from the University of Notre Dame.

Andrew Pinson is an associate at Jones Day, where he focuses on appellate litigation and complex trial litigation in a variety of substantive areas. He is a former law clerk to Judge Sentelle of the U.S. Court of Appeals for the D.C. Circuit, and holds a J.D. and B.B.A. from the University of Georgia.

Suggested citation: Hank Asbill, Brian Murray and Andrew Pinson, Salinas v. Texas: The Fifth Amendment During Pre-Arrest Interviews, JURIST - Sidebar, Jul. 9, 2013,

This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at

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