In 2013, the United States Supreme Court struck a blow against the Fifth Amendment in the case of Salinas v. Texas. The opinion may be found here.

In Salinas, police were investigating a double homicide and recovered several shotgun shell casings at the scene.  They then paid a visit to the defendant, whom they had begun to suspect, and he voluntarily agreed to accompany the officers to the police station. There, he was questioned, but he was not under arrest and supposedly free to leave at any time. In legal terms, the questioning was therefore “non-custodial.” As such, Miranda warnings were neither required nor given.

Mr. Salinas answered the police questions through most of the interview. But when the officer asked him whether his own shotgun would match the shell casings recovered at the scene, he fell silent, and according to the police, looked down, shuffled his feet around and bit his lip. After a few moments of uncomfortable silence, the officer asked him additional questions, which he answered. At trial, during closing argument, the prosecutor pointed out to the jury how the defendant had remained silent when asked about the shotgun, arguing that an innocent person would not have done so.

Three justices, in an opinion authored by Justice Alito, found that Salinas’s challenge failed because he did not expressly invoke his Fifth Amendment privilege. In their opinion, defendant’s silence was simply not enough to accomplish this. This view carried the day because two other justices, Scalia and Thomas, took an even more limited view of the protections of the Fifth Amendment, and would have overruled nearly fifty years of legal precedent in concluding that prosecutors may always use a defendant’s silence to prove guilt.

Four justices dissented, pointing out that the Court had repeatedly held that “no ritualistic formula is necessary to invoke the privilege,” and that whether the right was invoked turned on the circumstances. The particular circumstances, in this case, made it obvious that Mr. Salinas was invoking his fundamental right to remain silent. In addition, the dissent pointed out that the plurality rule now makes a defendant’s constitutional rights turn upon whether he or she knows the magic words to invoke them.

Future cases will, no doubt, address the question of exactly how clear the invocation of the right must be. For now, it would seem that the only safe strategy for a prospective defendant is to expressly invoke the Fifth Amendment privilege against self-incrimination.

Perhaps the only consolation is that the opinion could have been even worse has Justices Thomas and Scalia prevailed.