This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that most Americans think they possess does not exist. This article focuses on Salinas, where Genoveo Salinas agrees to speak with police about a double-murder. Because he is not under arrest and came to the police station voluntarily, Salinas is not given Miranda warnings. Salinas answers the officers’ questions, but remains silent when asked whether a ballistics test of the shotgun obtained from his home would match the shell casings found at the murder scene. After a few moments of silence, Salinas answers other questions. At trial, the prosecutor is allowed to use Salinas’s silence as substantive evidence of his guilt, and the jury convicts him of murder. The Court ruled that using silence in these circumstances as evidence of guilt did not violate the Fifth Amendment. The result and reasoning of Salinas raises some perplexing questions about the nature and scope of the Fifth Amendment and underscores the Court’s conflicting interpretations of the Fifth Amendment. A plurality of the Court ruled that Salinas’ constitutional “claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question” about the shotgun. The plurality explained that Salinas could have easily asserted that he was not answering the 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.” Implicit in this reasoning is that Salinas enjoyed Fifth Amendment protection during his interaction with the police. The Court has offered two different views of the Fifth Amendment. Under the “right to silence” interpretation, when government officials subject an individual to official coercion or its equivalent, the individual holds a right to remain silent, and the government cannot penalize the exercise of that right. The Salinas plurality found that Salinas could not rely on this principle because “his interview with police was voluntary.” But this conclusion raises the question of why the Fifth Amendment is implicated during a voluntary police interrogation. To assume Salinas enjoyed Fifth Amendment protection in this situation contradicts the Court’s “textual” interpretation of the Fifth Amendment, which establishes that the “sole concern of the Fifth Amendment . . . is governmental coercion.” If the focus of the privilege is on government compulsion, it would seem that the Fifth Amendment has no application to a voluntary police interview. Without explaining why the Fifth Amendment applies to voluntary police questioning, the plurality finds that Salinas had not properly asserted his rights. This conclusion, however, penalizes members of the public who have understandably, but erroneously, relied on the Court’s “right to silence” interpretation of the Fifth Amendment, which supposedly grants a right to remain silent for persons confronted with incriminating police questioning. The reasoning of the Salinas plurality raises another question about the nature and scope of the Fifth Amendment. The Fifth Amendment is stated in absolute terms; the government cannot require a person to be a witness against himself in any criminal case. Examining the text, it appears that everyone enjoys the same Fifth Amendment protection. Unlike other provisions of the Bill of Rights which often require the Court to balance an individual’s constitutional interest against the government’s interests, the text of the Fifth Amendment leaves no room for judicial balancing of competing interests. Yet, the Salinas plurality contrasts the Fifth Amendment rights of an arrestee with the Fifth Amendment rights of someone who voluntarily comes to the police station. The arrestee enjoys a right to silence, but the citizen who freely appears at the police station does not. Relying on the text of the amendment, the Salinas plurality explains that the public’s understanding of their right to silence is mistaken; according to the plurality, the amendment “does not establish an unqualified ‘right to remain silent.’” But if the Fifth Amendment does not afford an absolute right to remain silent for someone like Salinas, why would an express invocation of the Fifth Amendment matter? Invoking the words of the amendment, without more, would not change the voluntary nature of the interview. While the plurality opinion implies that an express invocation would make a constitutional difference, it never explains why. Finally, even assuming that an explicit invocation of the Fifth Amendment provides more protection than merely remaining silent, if police are permitted to tell someone in Salinas’ position that his silence can be used against him in a future prosecution, as the Court said they may do, why would a person bother invoking the Fifth Amendment after being told by police that silence can be used against him? After all, most laymen, and many lawyers, believe the right to silence is just another way of referring to the Fifth Amendment. This article will show that the right to silence and the Fifth Amendment are not the same. Indeed, the result and reasoning of Salinas demonstrate that the Fifth Amendment does not afford an individual, who has neither been indicted, nor arrested, nor temporarily detained by police, a right to remain silent in the face of police interrogation.
Tracey Maclin, The Right to Silence v. The Fifth Amendment, 2016 U. Chic. Legal F. 255