Salinas v. Texas

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SALINAS v. TEXAS
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 12–246. Argued April 17, 2013—Decided June 17, 2013
Petitioner, without being placed in custody or receiving Miranda warn-
ings, voluntarily answered some of a police officer’s questions about a
murder, but fell silent when asked whether ballistics testing would
match his shotgun to shell casings found at the scene of the crime. At
petitioner’s murder trial in Texas state court, and over his objection,
the prosecution used his failure to answer the question as evidence of
guilt. He was convicted, and both the State Court of Appeals and
Court of Criminal Appeals affirmed, rejecting his claim that the pros-
ecution’s use of his silence in its case in chief violated the Fifth
Amendment.
Held: The judgment is affirmed.
369 S.W.3d 176, affirmed.
JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY,
concluded that petitioner’s Fifth Amendment claim fails because he
did not expressly invoke the privilege in response to the officer’s
question. Pp. 3−12.
(a) To prevent the privilege against self-incrimination from shield-
ing information not properly within its scope, a witness who “ ‘desires
the protection of the privilege . . . must claim it’ ” at the time he relies
on it. Minnesota v. Murphy, 465 U.S. 420, 427. This Court has rec-
ognized two exceptions to that requirement. First, a criminal de-
fendant need not take the stand and assert the privilege at his own
trial. Griffin v. California, 380 U.S. 609, 613–615. Petitioner’s si-
lence falls outside this exception because he had no comparable un-
qualified right not to speak during his police interview. Second, a
witness’ failure to invoke the privilege against self-incrimination
must be excused where governmental coercion makes his forfeiture of
the privilege involuntary. See, e.g., Miranda v. Arizona, 384 U.S.
436, 467−468, and n. 37. Petitioner cannot benefit from this principle
2 SALINAS v. TEXAS
Syllabus
because it is undisputed that he agreed to accompany the officers to
the station and was free to leave at any time. Pp. 3−6.
(b) Petitioner seeks a third exception to the express invocation re-
quirement for cases where the witness chooses to stand mute rather
than give an answer that officials suspect would be incriminating,
but this Court’s cases all but foreclose that argument. A defendant
normally does not invoke the privilege by remaining silent. See Rob-
erts v. United States, 445 U.S. 552, 560. And the express invocation
requirement applies even when an official has reason to suspect that
the answer to his question would incriminate the witness. See Mur-
phy, supra, at 427−428. For the same reasons that neither a witness’
silence nor official suspicion is sufficient by itself to relieve a witness
of the obligation to expressly invoke the privilege, they do not do so
together. The proposed exception also would be difficult to reconcile
with Berghuis v. Thompkins, 560 U.S. 370, where this Court held in
the closely related context of post-Miranda silence that a defendant
failed to invoke his right to cut off police questioning when he re-
mained silent for 2 hours and 45 minutes. Id., at ___.
Petitioner claims that reliance on the Fifth Amendment privilege is
the most likely explanation for silence in a case like his, but such si-
lence is “insolubly ambiguous.” See Doyle v. Ohio, 426 U.S. 610, 617.
To be sure, petitioner might have declined to answer the officer’s
question in reliance on his constitutional privilege. But he also might
have done so because he was trying to think of a good lie, because he
was embarrassed, or because he was protecting someone else. Not
every such possible explanation for silence is probative of guilt, but
neither is every possible explanation protected by the Fifth Amend-
ment. Petitioner also suggests that it would be unfair to require a
suspect unschooled in the particulars of legal doctrine to do anything
more than remain silent in order to invoke his “right to remain si-
lent.” But 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.” In any event, it is settled
that forfeiture of the privilege against self-incrimination need not be
knowing. Murphy, 465 U. S., at 427–428. Pp. 6−10.
(c) Petitioner’s argument that applying the express invocation re-
quirement in this context will be unworkable is also unpersuasive.
The Court has long required defendants to assert the privilege in or-
der to subsequently benefit from it, and this rule has not proved diffi-
cult to apply in practice. Pp. 10−12.
JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that peti-
tioner’s claim would fail even if he invoked the privilege because the
prosecutor’s comments regarding his precustodial silence did not
compel him to give self-incriminating testimony. Griffin v. Califor-
Cite as: 570 U. S. ____ (2013) 3
Syllabus
nia, 380 U.S. 609, in which this Court held that the Fifth Amend-
ment prohibits a prosecutor or judge from commenting on a defend-
ant’s failure to testify, should not be extended to a defendant’s silence
during a precustodial interview because Griffin “lacks foundation in
the Constitution’s text, history, or logic.” See Mitchell v. United
States, 526 U.S. 314, 341 (THOMAS, J., dissenting). Pp. 1−2.
ALITO, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and KENNEDY, J., 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.
Cite as: 570 U. S. ____ (2013) 1
Opinion of ALITO, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–246
_________________
GENOVEVO SALINAS, PETITIONER v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF TEXAS
[June 17, 2013]
JUSTICE ALITO announced the judgment of the Court
and delivered an opinion in which THE CHIEF JUSTICE and
JUSTICE KENNEDY join.
Without being placed in custody or receiving Miranda
warnings, petitioner voluntarily answered the questions
of a police officer who was investigating a murder. But
petitioner balked when the officer asked whether a ballis-
tics test would show that the shell casings found at the
crime scene would match petitioner’s shotgun. Petitioner
was subsequently charged with murder, and at trial pros-
ecutors argued that his reaction to the officer’s question
suggested that he was guilty. Petitioner claims that this
argument violated the Fifth Amendment, which guaran-
tees that “[n]o person . . . shall be compelled in any crimi-
nal case to be a witness against himself.”
Petitioner’s Fifth Amendment claim fails because he
did not expressly invoke the privilege against self-
incrimination in response to the officer’s question. It has
long been settled that the privilege “generally is not self-
executing” and that a witness who desires its protection
“ ‘must claim it.’ ” Minnesota v. Murphy, 465 U.S. 420,
425, 427 (1984) (quoting United States v. Monia, 317 U.S.
2 SALINAS v. TEXAS
Opinion of ALITO, J.
424, 427 (1943)). Although “no ritualistic formula is nec-
essary in order to invoke the privilege,” Quinn v. United
States, 349 U.S. 155, 164 (1955), a witness does not do so
by simply standing mute. Because petitioner was required
to assert the privilege in order to benefit from it, the
judgment of the Texas Court of Criminal Appeals rejecting
petitioner’s Fifth Amendment claim is affirmed.
I
On the morning of December 18, 1992, two brothers
were shot and killed in their Houston home. There were
no witnesses to the murders, but a neighbor who heard
gunshots saw someone run out of the house and speed
away in a dark-colored car. Police recovered six shotgun
shell casings at the scene. The investigation led police to
petitioner, who had been a guest at a party the victims
hosted the night before they were killed. Police visited
petitioner at his home, where they saw a dark blue car in
the driveway. He agreed to hand over his shotgun for
ballistics testing and to accompany police to the station
for questioning.
Petitioner’s interview with the police lasted approxi-
mately one hour. All agree that the interview was noncusto-
dial, and the parties litigated this case on the assumption
that he was not read Miranda warnings. See Mi-
randa v. Arizona, 384 U.S. 436 (1966). For most of the
interview, petitioner answered the officer’s questions. But
when asked whether his shotgun “would match the shells
recovered at the scene of the murder,” App. 17, petitioner
declined to answer. Instead, petitioner “[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.” Id., at 18.
After a few moments of silence, the officer asked addition-
al questions, which petitioner answered. Ibid.
Following the interview, police arrested petitioner on
outstanding traffic warrants. Prosecutors soon concluded
Cite as: 570 U. S. ____ (2013) 3
Opinion of ALITO, J.
that there was insufficient evidence to charge him with
the murders, and he was released. A few days later, police
obtained a statement from a man who said he had heard
petitioner confess to the killings. On the strength of
that additional evidence, prosecutors decided to charge peti-
tioner, but by this time he had absconded. In 2007, police
discovered petitioner living in the Houston area under an
assumed name.
Petitioner did not testify at trial. Over his objection,
prosecutors used his reaction to the officer’s question dur-
ing the 1993 interview as evidence of his guilt. The jury
found petitioner guilty, and he received a 20-year sen-
tence. On direct appeal to the Court of Appeals of
Texas, petitioner argued that prosecutors’ use of his si-
lence as part of their case in chief violated the Fifth
Amendment. The Court of Appeals rejected that argu-
ment, reasoning that petitioner’s prearrest, pre-Miranda
silence was not “compelled” within the meaning of the
Fifth Amendment. 368 S.W.3d 550, 557–559 (2011). The
Texas Court of Criminal Appeals took up this case and
affirmed on the same ground. 369 S.W.3d 176 (2012).
We granted certiorari, 568 U. S. ___ (2013), to resolve
a division of authority in the lower courts over whether
the prosecution may use a defendant’s assertion of the
privilege against self-incrimination during a noncustodial
police interview as part of its case in chief. Compare, e.g.,
United States v. Rivera, 944 F.2d 1563, 1568 (CA11 1991),
with United States v. Moore, 104 F.3d 377, 386 (CADC
1997). But because petitioner did not invoke the privilege
during his interview, we find it unnecessary to reach that
question.
II
A
The privilege against self-incrimination “is an exception
to the general principle that the Government has the right
4 SALINAS v. TEXAS
Opinion of ALITO, J.
to everyone’s testimony.” Garner v. United States, 424
U.S. 648, 658, n. 11 (1976). To prevent the privilege from
shielding information not properly within its scope, we
have long held that a witness who “ ‘desires the protection
of the privilege . . . must claim it’ ” at the time he relies on
it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at
427). See also United States ex rel. Vajtauer v. Commis-
sioner of Immigration, 273 U.S. 103, 113 (1927).
That requirement ensures that the Government is put
on notice when a witness intends to rely on the privilege
so that it may either argue that the testimony sought
could not be self-incriminating, see Hoffman v. United
States, 341 U.S. 479, 486 (1951), or cure any potential
self-incrimination through a grant of immunity, see Kasti-
gar v. United States, 406 U.S. 441, 448 (1972). The ex-
press invocation requirement also gives courts tasked with
evaluating a Fifth Amendment claim a contemporaneous
record establishing the witness’ reasons for refusing to
answer. See Roberts v. United States, 445 U.S. 552, 560,
n. 7 (1980) (“A witness may not employ the privilege to
avoid giving testimony that he simply would prefer not
to give”); Hutcheson v. United States, 369 U.S. 599, 610–
611 (1962) (declining to treat invocation of due process as
proper assertion of the privilege). In these ways, insisting
that witnesses expressly invoke the privilege “assures that
the Government obtains all the information to which it is
entitled.” Garner, supra, at 658, n. 11.
We have previously recognized two exceptions to the
requirement that witnesses invoke the privilege, but
neither applies here. First, we held in Griffin v. Califor-
nia, 380 U.S. 609, 613–615 (1965), that a criminal de-
fendant need not take the stand and assert the privilege at
his own trial. That exception reflects the fact that a crim-
inal defendant has an “absolute right not to testify.”
Turner v. United States, 396 U.S. 398, 433 (1970) (Black,
J., dissenting); see United States v. Patane, 542 U.S. 630,
Cite as: 570 U. S. ____ (2013) 5
Opinion of ALITO, J.
637 (2004) (plurality opinion). Since a defendant’s reasons
for remaining silent at trial are irrelevant to his constitu-
tional right to do so, requiring that he expressly invoke
the privilege would serve no purpose; neither a showing
that his testimony would not be self-incriminating nor a
grant of immunity could force him to speak. Because pe-
titioner had no comparable unqualified right during his
interview with police, his silence falls outside the Griffin
exception.
Second, we have held that a witness’ failure to invoke
the privilege must be excused where governmental coer-
cion makes his forfeiture of the privilege involuntary.
Thus, in Miranda, we said that a suspect who is subjected
to the “inherently compelling pressures” of an unwarned
custodial interrogation need not invoke the privilege. 384
U. S., at 467–468, and n. 37. Due to the uniquely coercive
nature of custodial interrogation, a suspect in custody
cannot be said to have voluntarily forgone the privilege
“unless [he] fails to claim [it] after being suitably warned.”
Murphy, supra, at 429–430.
For similar reasons, we have held that threats to with-
draw a governmental benefit such as public employment
sometimes make exercise of the privilege so costly that it
need not be affirmatively asserted. Garrity v. New Jersey,
385 U.S. 493, 497 (1967) (public employment). See also
Lefkowitz v. Cunningham, 431 U.S. 801, 802–804 (1977)
(public office); Lefkowitz v. Turley, 414 U.S. 70, 84–85
(1973) (public contracts). And where assertion of the
privilege would itself tend to incriminate, we have allowed
witnesses to exercise the privilege through silence. See,
e.g., Leary v. United States, 395 U.S. 6, 28–29 (1969) (no
requirement that taxpayer complete tax form where doing
so would have revealed income from illegal activities);
Albertson v. Subversive Activities Control Bd., 382 U.S.
70, 77–79 (1965) (members of the Communist Party not
required to complete registration form “where response to
6 SALINAS v. TEXAS
Opinion of ALITO, J.
any of the form’s questions . . . might involve [them] in the
admission of a crucial element of a crime”). The principle
that unites all of those cases is that a witness need not
expressly invoke the privilege where some form of official
compulsion denies him “a ‘free choice to admit, to deny,
or to refuse to answer.’ ” Garner, 424 U. S., at 656–657
(quoting Lisenba v. California, 314 U.S. 219, 241 (1941)).
Petitioner cannot benefit from that principle because it
is undisputed that his interview with police was volun-
tary. As petitioner himself acknowledges, he agreed to
accompany the officers to the station and “was free to
leave at any time during the interview.” Brief for Peti-
tioner 2–3 (internal quotation marks omitted). That places
petitioner’s situation outside the scope of Miranda and
other cases in which we have held that various forms of
governmental coercion prevented defendants from volun-
tarily invoking the privilege. The dissent elides this point
when it cites our precedents in this area for the proposi-
tion that “[c]ircumstances, rather than explicit invocation,
trigger the protection of the Fifth Amendment.” Post,
at 7–8 (opinion of BREYER, J.). The critical question is
whether, under the “circumstances” of this case, petitioner
was deprived of the ability to voluntarily invoke the Fifth
Amendment. He was not. We have before us no allegation
that petitioner’s failure to assert the privilege was invol-
untary, and it would have been a simple matter for him to
say that he was not answering the officer’s question on
Fifth Amendment grounds. Because he failed to do so, the
prosecution’s use of his noncustodial silence did not violate
the Fifth Amendment.
B
Petitioner urges us to adopt a third exception to the in-
vocation requirement for cases in which a witness stands
mute and thereby declines to give an answer that of-
ficials suspect would be incriminating. Our cases all but
Cite as: 570 U. S. ____ (2013) 7
Opinion of ALITO, J.
foreclose such an exception, which would needlessly bur-
den the Government’s interests in obtaining testimony
and prosecuting criminal activity. We therefore decline
petitioner’s invitation to craft a new exception to the
“general rule” that a witness must assert the privilege to
subsequently benefit from it. Murphy, 465 U. S., at 429.
Our cases establish that a defendant normally does not
invoke the privilege by remaining silent. In Roberts v.
United States, 445 U.S. 552, for example, we rejected the
Fifth Amendment claim of a defendant who remained
silent throughout a police investigation and received a
harsher sentence for his failure to cooperate. In so ruling,
we explained that “if [the defendant] believed that his
failure to cooperate was privileged, he should have said so
at a time when the sentencing court could have deter-
mined whether his claim was legitimate.” Id., at 560. See
also United States v. Sullivan, 274 U.S. 259, 263–264
(1927); Vajtauer, 273 U. S., at 113.1 A witness does not
expressly invoke the privilege by standing mute.
We have also repeatedly held that the express invoca-
tion requirement applies even when an official has reason
to suspect that the answer to his question would incrim-
inate the witness. Thus, in Murphy we held that the
defendant’s self-incriminating answers to his probation of-
ficer were properly admitted at trial because he failed to
invoke the privilege. 465 U. S., at 427–428. In reaching
that conclusion, we rejected the notion “that a witness
——————
1 The dissent argues that in these cases “neither the nature of the
questions nor the circumstances of the refusal to answer them provided
any basis to infer a tie between the silence and the Fifth Amendment.”
Post, at 5–6 (opinion of BREYER, J.). But none of our precedents sug-
gests that governmental officials are obliged to guess at the meaning of
a witness’ unexplained silence when implicit reliance on the Fifth
Amendment seems probable. Roberts does not say as much, despite its
holding that the defendant in that case was required to explain the
Fifth Amendment basis for his failure to cooperate with an investiga-
tion that led to his prosecution. 445 U. S., at 559.
8 SALINAS v. TEXAS
Opinion of ALITO, J.
must ‘put the Government on notice by formally availing
himself of the privilege’ only when he alone ‘is reasonably
aware of the incriminating tendency of the questions.’ ”
Id., at 428 (quoting Roberts, supra, at 562, n.* (Brennan,
J., concurring)). See also United States v. Kordel, 397
U.S. 1, 7 (1970).2
Petitioner does not dispute the vitality of either of those
lines of precedent but instead argues that we should adopt
an exception for cases at their intersection. Thus, peti-
tioner would have us hold that although neither a wit-
ness’ silence nor official suspicions are enough to excuse
the express invocation requirement, the invocation require-
ment does not apply where a witness is silent in the face of
official suspicions. For the same reasons that neither
of those factors is sufficient by itself to relieve a witness of
the obligation to expressly invoke the privilege, we con-
clude that they do not do so together. A contrary result
would do little to protect those genuinely relying on the
Fifth Amendment privilege while placing a needless new
burden on society’s interest in the admission of evidence
that is probative of a criminal defendant’s guilt.
Petitioner’s proposed exception would also be very diffi-
cult to reconcile with Berghuis v. Thompkins, 560 U.S.
370 (2010). There, we held in the closely related context of
post-Miranda silence that a defendant failed to invoke the
——————
2 Our cases do not support the distinction the dissent draws between
silence and the failure to invoke the privilege before making incriminat-
ing statements. See post, at 7 (BREYER, J., dissenting). For example,
Murphy, a case in which the witness made incriminating statements
after failing to invoke the privilege, repeatedly relied on Roberts
and Vajtauer—two cases in which witnesses remained silent and did
not make incriminating statements. 465 U. S., at 427, 429, 455–456,
n. 20. Similarly, Kordel cited Vajtauer, among other cases, for the
proposition that the defendant’s “failure at any time to assert the
constitutional privilege leaves him in no position to complain now that
he was compelled to give testimony against himself.” 397 U. S., at 10,
and n. 18.
Cite as: 570 U. S. ____ (2013) 9
Opinion of ALITO, J.
privilege when he refused to respond to police questioning
for 2 hours and 45 minutes. 560 U. S., at ___ (slip op., at
3, 8–10). If the extended custodial silence in that case did
not invoke the privilege, then surely the momentary si-
lence in this case did not do so either.
Petitioner and the dissent attempt to distinguish Berg-
huis by observing that it did not concern the admissi-
bility of the defendant’s silence but instead involved the
admissibility of his subsequent statements. Post, at 8–9
(opinion of BREYER, J.). But regardless of whether prose-
cutors seek to use silence or a confession that follows, the
logic of Berghuis applies with equal force: A suspect who
stands mute has not done enough to put police on notice
that he is relying on his Fifth Amendment privilege.3
In support of their proposed exception to the invocation
requirement, petitioner and the dissent argue that reli-
ance on the Fifth Amendment privilege is the most likely
explanation for silence in a case such as this one. Reply
Brief 17; see post, at 9–10 (BREYER, J., dissenting). But
whatever the most probable explanation, such silence is
“insolubly ambiguous.” See Doyle, v. Ohio, 426 U.S. 610,
617 (1976). To be sure, someone might decline to answer a
police officer’s question in reliance on his constitutional
privilege. But he also might do so because he is trying to
think of a good lie, because he is embarrassed, or because
he is protecting someone else. Not every such possible
explanation for silence is probative of guilt, but neither is
every possible explanation protected by the Fifth Amend-
ment. Petitioner alone knew why he did not answer the
officer’s question, and it was therefore his “burden . . . to
——————
3 Petitioner is correct that due process prohibits prosecutors from
pointing to the fact that a defendant was silent after he heard Miranda
warnings, Doyle v. Ohio, 426 U.S. 610, 617–618 (1976), but that rule
does not apply where a suspect has not received the warnings’ implicit
promise that any silence will not be used against him, Jenkins v.
Anderson, 447 U.S. 231, 240 (1980).
10 SALINAS v. TEXAS
Opinion of ALITO, J.
make a timely assertion of the privilege.” Garner, 424
U. S., at 655.
At oral argument, counsel for petitioner suggested that
it would be unfair to require a suspect unschooled in the
particulars of legal doctrine to do anything more than
remain silent in order to invoke his “right to remain si-
lent.” Tr. of Oral Arg. 26–27; see post, at 10 (BREYER, J.,
dissenting); Michigan v. Tucker, 417 U.S. 433, 439 (1974)
(observing that “virtually every schoolboy is familiar with
the concept, if not the language” of the Fifth Amendment).
But popular misconceptions notwithstanding, the Fifth
Amendment guarantees that no one may be “compelled in
any criminal case to be a witness against himself ”; it does
not establish an unqualified “right to remain silent.” A
witness’ constitutional right to refuse to answer questions
depends on his reasons for doing so, and courts need to
know those reasons to evaluate the merits of a Fifth
Amendment claim. See Hoffman, 341 U. S., at 486–487.4
In any event, it is settled that forfeiture of the privilege
against self-incrimination need not be knowing. Murphy,
465 U. S., at 427–428; Garner, supra, at 654, n. 9. State-
ments against interest are regularly admitted into evi-
dence at criminal trials, see Fed. Rule of Evid. 804(b)(3),
and there is no good reason to approach a defendant’s
silence any differently.
C
Finally, we are not persuaded by petitioner’s arguments
——————
4 The dissent suggests that officials in this case had no “special need
to know whether the defendant sought to rely on the protections of the
Fifth Amendment.” Post, at 4 (opinion of BREYER, J.). But we have
never said that the government must demonstrate such a need on a
case-by-case basis for the invocation requirement to apply. Any such
rule would require judicial hypothesizing about the probable strategic
choices of prosecutors, who often use immunity to compel testimony
from witnesses who invoke the Fifth Amendment.
Cite as: 570 U. S. ____ (2013) 11
Opinion of ALITO, J.
that applying the usual express invocation requirement
where a witness is silent during a noncustodial police
interview will prove unworkable in practice. Petitioner
and the dissent suggest that our approach will “unleash
complicated and persistent litigation” over what a suspect
must say to invoke the privilege, Reply Brief 18; see post,
at 11–12 (opinion of BREYER, J.), but our cases have
long required that a witness assert the privilege to subse-
quently benefit from it. That rule has not proved difficult to
apply. Nor did the potential for close cases dissuade us
from adopting similar invocation requirements for sus-
pects who wish to assert their rights and cut off police
questioning during custodial interviews. Berghuis, 560
U. S., at ___ (slip op., at 8–10) (requiring suspect to unam-
biguously assert privilege against self-incrimination to cut
off custodial questioning); Davis v. United States, 512
U.S. 452, 459 (1994) (same standard for assertions of the
right to counsel).
Notably, petitioner’s approach would produce its own
line-drawing problems, as this case vividly illustrates.
When the interviewing officer asked petitioner if his
shotgun would match the shell casings found at the crime
scene, petitioner did not merely remain silent; he made
movements that suggested surprise and anxiety. At pre-
cisely what point such reactions transform “silence” into
expressive conduct would be a difficult and recurring
question that our decision allows us to avoid.
We also reject petitioner’s argument that an express
invocation requirement will encourage police officers to
“ ‘unfairly “tric[k]” ’ ” suspects into cooperating. Reply Brief
21 (quoting South Dakota v. Neville, 459 U.S. 553, 566
(1983)). Petitioner worries that officers could unduly
pressure suspects into talking by telling them that their
silence could be used in a future prosecution. But as
petitioner himself concedes, police officers “have done
nothing wrong” when they “accurately stat[e] the law.”
12 SALINAS v. TEXAS
Opinion of ALITO, J.
Brief for Petitioner 32. We found no constitutional infir-
mity in government officials telling the defendant in Mur-
phy that he was required to speak truthfully to his parole
officer, 465 U. S., at 436–438, and we see no greater dan-
ger in the interview tactics petitioner identifies. So long
as police do not deprive a witness of the ability to volun-
tarily invoke the privilege, there is no Fifth Amendment
violation.
* * *
Before petitioner could rely on the privilege against self-
incrimination, he was required to invoke it. Because he
failed to do so, the judgment of the Texas Court of Crimi-
nal Appeals is affirmed.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–246
_________________
GENOVEVO SALINAS, PETITIONER v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF TEXAS
[June 17, 2013]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, con-
curring in the judgment.
We granted certiorari to decide whether the Fifth Amend-
ment privilege against compulsory self-incrimination
prohibits a prosecutor from using a defendant’s pre-
custodial silence as evidence of his guilt. The plurality
avoids reaching that question and instead concludes that
Salinas’ Fifth Amendment claim fails because he did not
expressly invoke the privilege. Ante, at 3. I think there is
a simpler way to resolve this case. In my view, Salinas’
claim would fail even if he had invoked the privilege be-
cause the prosecutor’s comments regarding his precusto-
dial silence did not compel him to give self-incriminating
testimony.
In Griffin v. California, 380 U.S. 609 (1965), this Court
held that the Fifth Amendment prohibits a prosecutor or
judge from commenting on a defendant’s failure to testify.
Id., at 614. The Court reasoned that such comments, and
any adverse inferences drawn from them, are a “penalty”
imposed on the defendant’s exercise of his Fifth Amend-
ment privilege. Ibid. Salinas argues that we should
extend Griffin’s no-adverse-inference rule to a defendant’s
silence during a precustodial interview. I have previously
explained that the Court’s decision in Griffin “lacks foun-
dation in the Constitution’s text, history, or logic” and
should not be extended. See Mitchell v. United States, 526
2 SALINAS v. TEXAS
THOMAS, J., concurring in judgment
U. S. 314, 341 (1999) (dissenting opinion). I adhere to that
view today.
Griffin is impossible to square with the text of the Fifth
Amendment, which provides that “[n]o person . . . shall be
compelled in any criminal case to be a witness against
himself.” A defendant is not “compelled . . . to be a witness
against himself ” simply because a jury has been told that
it may draw an adverse inference from his silence. See
Mitchell, supra, at 331 (SCALIA, J., dissenting) (“[T]he
threat of an adverse inference does not ‘compel’ anyone to
testify. . . . Indeed, I imagine that in most instances, a
guilty defendant would choose to remain silent despite
the adverse inference, on the theory that it would do
him less damage than his cross-examined testimony”);
Carter v. Kentucky, 450 U.S. 288, 306 (1981) (Powell,
J., concurring) (“[N]othing in the [Self-Incrimination]
Clause requires that jurors not draw logical inferences
when a defendant chooses not to explain incriminating
circumstances”).
Nor does the history of the Fifth Amendment support
Griffin. At the time of the founding, English and Ameri-
can courts strongly encouraged defendants to give un-
sworn statements and drew adverse inferences when they
failed to do so. See Mitchell, supra, at 332 (SCALIA, J.,
dissenting); Alschuler, A Peculiar Privilege in Historical
Perspective, in The Privilege Against Self-Incrimination
204 (R. Hemholz et al. eds. 1997). Given Griffin’s indefen-
sible foundation, I would not extend it to a defendant’s
silence during a precustodial interview. I agree with the
plurality that Salinas’ Fifth Amendment claim fails and,
therefore, concur in the judgment.
Cite as: 570 U. S. ____ (2013) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–246
_________________
GENOVEVO SALINAS, PETITIONER v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF TEXAS
[June 17, 2013]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
In my view the Fifth Amendment here prohibits the
prosecution from commenting on the petitioner’s silence in
response to police questioning. And I dissent from the
Court’s contrary conclusion.
I
In January 1993, Houston police began to suspect peti-
tioner Genovevo Salinas of having committed two murders
the previous month. They asked Salinas to come to the
police station “to take photographs and to clear him as [a]
suspect.” App. 3. At the station, police took Salinas into
what he describes as “an interview room.” Brief for Peti-
tioner 3. Because he was “free to leave at that time,” App.
14, they did not give him Miranda warnings. The police
then asked Salinas questions. And Salinas answered until
the police asked him whether the shotgun from his home
“would match the shells recovered at the scene of the
murder.” Id., at 17. At that point Salinas fell silent. Ibid.
Salinas was later tried for, and convicted of, murder. At
closing argument, drawing on testimony he had elicited
earlier, the prosecutor pointed out to the jury that Salinas,
during his earlier questioning at the police station, had
remained silent when asked about the shotgun. The
prosecutor told the jury, among other things, that “ ‘[a]n
2 SALINAS v. TEXAS
BREYER, J., dissenting
innocent person’ ” would have said, “ ‘What are you talking
about? I didn’t do that. I wasn’t there.’ ” 368 S.W.3d
550, 556 (Tex. Ct. App. 2011). But Salinas, the prosecutor
said, “ ‘didn’t respond that way.’ ” Ibid. Rather, “ ‘[h]e
wouldn’t answer that question.’ ” Ibid.
II
The question before us is whether the Fifth Amendment
prohibits the prosecutor from eliciting and commenting
upon the evidence about Salinas’ silence. The plurality
believes that the Amendment does not bar the evidence
and comments because Salinas “did not expressly invoke
the privilege against self-incrimination” when he fell silent
during the questioning at the police station. Ante, at 1.
But, in my view, that conclusion is inconsistent with this
Court’s case law and its underlying practical rationale.
A
The Fifth Amendment prohibits prosecutors from com-
menting on an individual’s silence where that silence
amounts to an effort to avoid becoming “a witness against
himself.” This Court has specified that “a rule of evidence”
permitting “commen[t] . . . by counsel” in a criminal case
upon a defendant’s failure to testify “violates the Fifth
Amendment.” Griffin v. California, 380 U.S. 609, 610,
n. 2, 613 (1965) (internal quotation marks omitted). See
also United States v. Patane, 542 U.S. 630, 637 (2004)
(plurality opinion); Turner v. United States, 396 U.S. 398,
433 (1970) (Black, J., dissenting). And, since “it is imper-
missible to penalize an individual for exercising his Fifth
Amendment privilege when he is under police custodial
interrogation,” the “prosecution may not . . . use at trial
the fact that he stood mute or claimed his privilege in the
face of accusation.” Miranda v. Arizona, 384 U.S. 436,
468, n. 37 (1966) (emphasis added).
Particularly in the context of police interrogation, a
Cite as: 570 U. S. ____ (2013) 3
BREYER, J., dissenting
contrary rule would undermine the basic protection that
the Fifth Amendment provides. Cf. Kastigar v. United
States, 406 U.S. 441, 461 (1972) (“The privilege . . . usu-
ally operates to allow a citizen to remain silent when asked
a question requiring an incriminatory answer”). To permit
a prosecutor to comment on a defendant’s constitutionally
protected silence would put that defendant in an impossi-
ble predicament. He must either answer the question or
remain silent. If he answers the question, he may well
reveal, for example, prejudicial facts, disreputable associ-
ates, or suspicious circumstances—even if he is innocent.
See, e.g., Griffin, supra, at 613; Kassin, Inside Interroga-
tion: Why Innocent People Confess, 32 Am. J. Trial Advoc.
525, 537 (2009). If he remains silent, the prosecutor may
well use that silence to suggest a consciousness of guilt.
And if the defendant then takes the witness stand in order
to explain either his speech or his silence, the prosecution
may introduce, say for impeachment purposes, a prior
conviction that the law would otherwise make inadmissi-
ble. Thus, where the Fifth Amendment is at issue, to
allow comment on silence directly or indirectly can compel
an individual to act as “a witness against himself ”—very
much what the Fifth Amendment forbids. Cf. Pennsylva-
nia v. Muniz, 496 U.S. 582, 596–597 (1990) (definition of
“testimonial” includes responses to questions that require
a suspect to communicate an express or implied assertion
of fact or belief). And that is similarly so whether the
questioned individual, as part of his decision to remain
silent, invokes the Fifth Amendment explicitly or implic-
itly, through words, through deeds, or through reference to
surrounding circumstances.
B
It is consequently not surprising that this Court, more
than half a century ago, explained that “no ritualistic
formula is necessary in order to invoke the privilege.”
4 SALINAS v. TEXAS
BREYER, J., dissenting
Quinn v. United States, 349 U.S. 155, 164 (1955). Thus,
a prosecutor may not comment on a defendant’s failure to
testify at trial—even if neither the defendant nor anyone
else ever mentions a Fifth Amendment right not to do so.
Circumstances, not a defendant’s statement, tie the de-
fendant’s silence to the right. Similarly, a prosecutor may
not comment on the fact that a defendant in custody, after
receiving Miranda warnings, “stood mute”—regardless of
whether he “claimed his privilege” in so many words.
Miranda, supra, at 468, n. 37. Again, it is not any explicit
statement but, instead, the defendant’s deeds (silence) and
circumstances (receipt of the warnings) that tie together
silence and constitutional right. Most lower courts have so
construed the law, even where the defendant, having
received Miranda warnings, answers some questions
while remaining silent as to others. See, e.g., Hurd v.
Terhune, 619 F.3d 1080, 1087 (CA9 2010); United States
v. May, 52 F.3d 885, 890 (CA10 1995); United States v.
Scott, 47 F.3d 904, 907 (CA7 1995); United States v. Can-
terbury, 985 F.2d 483, 486 (CA10 1993); Grieco v. Hall,
641 F.2d 1029, 1034 (CA1 1981); United States v. Ghiz,
491 F.2d 599, 600 (CA4 1974). But see, e.g., United States
v. Harris, 956 F.2d 177, 181 (CA8 1992).
The cases in which this Court has insisted that a de-
fendant expressly mention the Fifth Amendment by name
in order to rely on its privilege to protect silence are cases
where (1) the circumstances surrounding the silence (un-
like the present case) did not give rise to an inference that
the defendant intended, by his silence, to exercise his Fifth
Amendment rights; and (2) the questioner greeted by the
silence (again unlike the present case) had a special need
to know whether the defendant sought to rely on the
protections of the Fifth Amendment. See ante, at 4 (ex-
plaining that, in such cases, the government needs to
know the basis for refusing to answer “so that it may
either argue that the testimony sought could not be self-
Cite as: 570 U. S. ____ (2013) 5
BREYER, J., dissenting
incriminating or cure any potential self-incrimination
through a grant of immunity” (citation omitted)). These
cases include Roberts, Rogers, Sullivan, Vajtauer, and
Jenkins—all of which at least do involve the protection of
silence—and also include cases emphasized by the plural-
ity that are not even about silence—namely, Murphy and
Garner.
In Roberts and Rogers, the individual refused to answer
questions that government investigators (in Roberts) and a
grand jury (in Rogers) asked, principally because the
individual wanted to avoid incriminating other persons.
Roberts v. United States, 445 U.S. 552, 553–556 (1980);
Rogers v. United States, 340 U.S. 367, 368–370, and n. 4
(1951). But the Fifth Amendment does not protect some-
one from incriminating others; it protects against self-
incrimination. In turn, neither the nature of the questions
nor the circumstances of the refusal to answer them pro-
vided any basis to infer a tie between the silence and the
Fifth Amendment, while knowledge of any such tie would
have proved critical to the questioner’s determination as to
whether the defendant had any proper legal basis for
claiming Fifth Amendment protection.
In Sullivan, the defendant’s silence consisted of his
failure to file a tax return—a return, he later claimed, that
would have revealed his illegal activity as a bootlegger.
United States v. Sullivan, 274 U.S. 259, 262–264 (1927).
The circumstances did not give rise to an inference of a tie
between his silence (in the form of failing to file a tax
return) and the Fifth Amendment; and, if he really did
want to rely on the Fifth Amendment, then the govern-
ment would have had special need to know of any such tie
in order to determine whether, for example, the assertion
of privilege was valid and, perhaps, an offer of immunity
was appropriate.
In Vajtauer, an alien refused to answer questions asked
by an immigration official at a deportation proceeding.
6 SALINAS v. TEXAS
BREYER, J., dissenting
United States ex rel. Vajtauer v. Commissioner of Immi-
gration, 273 U.S. 103, 113 (1927). Here, the circumstances
gave rise to a distinct inference that the alien was not
invoking any Fifth Amendment privilege: The alien’s
lawyer had stated quite publicly at the hearing that he
advised his client to remain silent not on Fifth Amend-
ment grounds; rather, the lawyer “ ‘advise[d] the alien not
to answer any further questions until the evidence upon
which the warrant is based will be presented here.’ ” Id.,
at 106–107 (quoting the lawyer). This statement weak-
ened or destroyed the possibility of a silence-Fifth
Amendment linkage; the Government could not challenge
his right to invoke the Fifth Amendment; and this Court
described its later invocation as “evidently an after-
thought.” Id., at 113.
Perhaps most illustrative is Jenkins, a case upon which
the plurality relies, ante, at 9, n. 3, and upon which the
Texas Court of Criminal Appeals relied almost exclusively,
369 S.W.3d 176, 178–179 (2012). Jenkins killed some-
one, and was not arrested until he turned himself in two
weeks later. Jenkins v. Anderson, 447 U.S. 231, 232
(1980). On cross-examination at his trial, Jenkins claimed
that his killing was in self-defense after being attacked.
Id., at 232–233. The prosecutor then asked why he did not
report the alleged attack, and in closing argument sug-
gested that Jenkins’ failure to do so cast doubt on his
claim to have acted in self-defense. Id., at 233–234. We
explained that this unusual form of “prearrest silence”
was not constitutionally protected from use at trial. Id., at
240. Perhaps even more aptly, Justice Stevens’ concur-
rence noted that “the privilege against compulsory self-
incrimination is simply irrelevant” in such circumstances.
Id., at 241 (footnote omitted). How would anyone have
known that Jenkins, while failing to report an attack, was
relying on the Fifth Amendment? And how would the
government have had any way of determining whether his
Cite as: 570 U. S. ____ (2013) 7
BREYER, J., dissenting
claim was valid? In Jenkins, as in Roberts, Rogers, Sulli-
van, and Vajtauer, no one had any reason to connect si-
lence to the Fifth Amendment; and the government had no
opportunity to contest any alleged connection.
Still further afield from today’s case are Murphy and
Garner, neither of which involved silence at all. Rather, in
both cases, a defendant had earlier answered questions
posed by the government—in Murphy, by speaking with a
probation officer, and in Garner, by completing a tax
return. Minnesota v. Murphy, 465 U.S. 420, 422–425
(1984); Garner v. United States, 424 U.S. 648, 649–650
(1976). At the time of providing answers, neither circum-
stances nor deeds nor words suggested reliance on the
Fifth Amendment: Murphy simply answered questions
posed by his probation officer; Garner simply filled out a
tax return. They did not argue that their self-
incriminating statements had been “compelled” in viola-
tion of the Fifth Amendment until later, at trial. Murphy,
supra, at 425, 431; Garner, supra, at 649, 665. The Court
held that those statements were not compelled. Murphy,
supra, at 440; Garner, supra, at 665. The circumstances
indicated that the defendants had affirmatively chosen to
speak and to write.
Thus, we have two sets of cases: One where express
invocation of the Fifth Amendment was not required to tie
one’s silence to its protections, and another where some-
thing like express invocation was required, because cir-
cumstances demanded some explanation for the silence
(or the statements) in order to indicate that the Fifth
Amendment was at issue.
There is also a third set of cases, cases that may well fit
into the second category but where the Court has held that
the Fifth Amendment both applies and does not require
express invocation despite ambiguous circumstances. The
Court in those cases has made clear that an individual,
when silent, need not expressly invoke the Fifth Amend-
8 SALINAS v. TEXAS
BREYER, J., dissenting
ment if there are “inherently compelling pressures” not to
do so. Miranda, 384 U. S., at 467. Thus, in Garrity v.
New Jersey, 385 U.S. 493, 497 (1967), the Court held that
no explicit assertion of the Fifth Amendment was required
where, in the course of an investigation, such assertion
would, by law, have cost police officers their jobs. Similarly,
this Court did not require explicit assertion in response
to a grand jury subpoena where that assertion would have
cost two architects their public contracts or a political
official his job. Lefkowitz v. Turley, 414 U.S. 70, 75–76
(1973); Lefkowitz v. Cunningham, 431 U.S. 801, 802–804
(1977). In Leary v. United States, 395 U.S. 6, 28–29
(1969), the Court held that the Fifth Amendment did not
require explicit assertion of the privilege against self-
incrimination because, in the context of the Marihuana
Tax Act, such assertion would have been inherently in-
criminating. In Albertson v. Subversive Activities Control
Bd., 382 U.S. 70, 77–79 (1965), we held the same where
explicit assertion of the Fifth Amendment would have
required, as a first step, the potentially incriminating
admission of membership in the Communist Party. The
Court has also held that gamblers, without explicitly
invoking the Fifth Amendment, need not comply with tax
requirements that would, inherently and directly, lead to
self-incrimination. Marchetti v. United States, 390 U.S.
39, 60–61 (1968); Grosso v. United States, 390 U.S. 62,
67–68 (1968). All told, this third category of cases receives
the same treatment as the first: Circumstances, rather
than explicit invocation, trigger the protection of the Fifth
Amendment. So, too, in today’s case.
The plurality refers to one additional case, namely
Berghuis v. Thompkins, 560 U.S. 370 (2010). See ante, at
8. But that case is here beside the point. In Berghuis, the
defendant was in custody, he had been informed of his
Miranda rights, and he was subsequently silent in the
face of 2 hours and 45 minutes of questioning before he
Cite as: 570 U. S. ____ (2013) 9
BREYER, J., dissenting
offered any substantive answers. Id., at ___–___ (slip op.,
at 2–4). The Court held that he had waived his Fifth
Amendment rights in respect to his later speech. The
Court said nothing at all about a prosecutor’s right to
comment on his preceding silence and no prosecutor
sought to do so. Indeed, how could a prosecutor lawfully
have tried to do so, given this Court’s statement in Mi-
randa itself that a prosecutor cannot comment on the fact
that, after receiving Miranda warnings, the suspect “stood
mute”? 384 U. S., at 468, n. 37.
We end where we began. “[N]o ritualistic formula is
necessary in order to invoke the privilege.” Quinn, 349
U. S., at 164. Much depends on the circumstances of the
particular case, the most important circumstances being:
(1) whether one can fairly infer that the individual being
questioned is invoking the Amendment’s protection; (2) if
that is unclear, whether it is particularly important for
the questioner to know whether the individual is doing so;
and (3) even if it is, whether, in any event, there is a good
reason for excusing the individual from referring to the
Fifth Amendment, such as inherent penalization simply
by answering.
C
Applying these principles to the present case, I would
hold that Salinas need not have expressly invoked the
Fifth Amendment. The context was that of a criminal
investigation. Police told Salinas that and made clear that
he was a suspect. His interrogation took place at the
police station. Salinas was not represented by counsel.
The relevant question—about whether the shotgun from
Salinas’ home would incriminate him—amounted to a
switch in subject matter. And it was obvious that the new
question sought to ferret out whether Salinas was guilty of
murder. See 368 S.W. 3d, at 552–553.
These circumstances give rise to a reasonable inference
10 SALINAS v. TEXAS
BREYER, J., dissenting
that Salinas’ silence derived from an exercise of his Fifth
Amendment rights. This Court has recognized repeatedly
that many, indeed most, Americans are aware that they
have a constitutional right not to incriminate themselves
by answering questions posed by the police during an
interrogation conducted in order to figure out the perpe-
trator of a crime. See Dickerson v. United States, 530
U.S. 428, 443 (2000); Brogan v. United States, 522 U.S.
398, 405 (1998); Michigan v. Tucker, 417 U.S. 433, 439
(1974). The nature of the surroundings, the switch of
topic, the particular question—all suggested that the right
we have and generally know we have was at issue at the
critical moment here. Salinas, not being represented by
counsel, would not likely have used the precise words
“Fifth Amendment” to invoke his rights because he would
not likely have been aware of technical legal require-
ments, such as a need to identify the Fifth Amendment by
name.
At the same time, the need to categorize Salinas’ silence
as based on the Fifth Amendment is supported here by the
presence, in full force, of the predicament I discussed
earlier, namely that of not forcing Salinas to choose be-
tween incrimination through speech and incrimination
through silence. That need is also supported by the ab-
sence of any special reason that the police had to know,
with certainty, whether Salinas was, in fact, relying on the
Fifth Amendment—such as whether to doubt that there
really was a risk of self-incrimination, see Hoffman v.
United States, 341 U.S. 479, 486 (1951), or whether to
grant immunity, see Kastigar, 406 U. S., at 448. Given
these circumstances, Salinas’ silence was “sufficient to put
the [government] on notice of an apparent claim of the
privilege.” Quinn, supra, at 164. That being so, for rea-
sons similar to those given in Griffin, the Fifth Amend-
ment bars the evidence of silence admitted against Salinas
and mentioned by the prosecutor. See 380 U. S., at 614–615.
Cite as: 570 U. S. ____ (2013) 11
BREYER, J., dissenting
D
I recognize that other cases may arise where facts and
circumstances surrounding an individual’s silence present
a closer question. The critical question—whether those
circumstances give rise to a fair inference that the silence
rests on the Fifth Amendment—will not always prove easy
to administer. But that consideration does not support the
plurality’s rule-based approach here, for the administra-
tive problems accompanying the plurality’s approach are
even worse.
The plurality says that a suspect must “expressly invoke
the privilege against self-incrimination.” Ante, at 1. But
does it really mean that the suspect must use the exact
words “Fifth Amendment”? How can an individual who is
not a lawyer know that these particular words are legally
magic? Nor does the Solicitor General help when he adds
that the suspect may “mak[e] the claim ‘in any language
that [the questioner] may reasonably be expected to un-
derstand as an attempt to invoke the privilege.’ ” Brief for
United States as Amicus Curiae 22 (quoting Quinn, supra,
at 162–163; alteration in original). What counts as “mak-
ing the claim”? Suppose the individual says, “Let’s discuss
something else,” or “I’m not sure I want to answer that”; or
suppose he just gets up and leaves the room. Cf. Davis v.
Mississippi, 394 U.S. 721, 727, n. 6 (1969) (affirming “the
settled principle that while the police have the right to
request citizens to answer voluntarily questions concern-
ing unsolved crimes[,] they have no right to compel them
to answer”); Berkemer v. McCarty, 468 U.S. 420, 439
(1984) (noting that even someone detained in a Terry stop
“is not obliged to respond” to police questions); Florida v.
Royer, 460 U.S. 491, 497–498 (1983) (plurality opinion).
How is simple silence in the present context any different?
The basic problem for the plurality is that an effort to
have a simple, clear “explicit statement” rule poses a
serious obstacle to those who, like Salinas, seek to assert
12 SALINAS v. TEXAS
BREYER, J., dissenting
their basic Fifth Amendment right to remain silent, for
they are likely unaware of any such linguistic detail. At
the same time, acknowledging that our case law does not
require use of specific words, see ante, at 2, leaves the
plurality without the administrative benefits it might
hope to find in requiring that detail.
Far better, in my view, to pose the relevant question
directly: Can one fairly infer from an individual’s silence
and surrounding circumstances an exercise of the Fifth
Amendment’s privilege? The need for simplicity, the
constitutional importance of applying the Fifth Amend-
ment to those who seek its protection, and this Court’s
case law all suggest that this is the right question to ask
here. And the answer to that question in the circumstances
of today’s case is clearly: yes.
For these reasons, I believe that the Fifth Amendment
prohibits a prosecutor from commenting on Salinas’s
silence. I respectfully dissent from the Court’s contrary
conclusion.