In Salinas v. Texas, the United States Supreme Court held that a suspect’s refusal to answer an officer’s questions during a noncustodial, pre-Miranda, criminal interrogation is admissible at trial as substantive evidence of guilt. In a plurality decision, Justice Samuel Alito emphasized that before a suspect can rely on the privilege against self-incrimination, the suspect must invoke the privilege. Consequently, because silence does not invoke the privilege, and because the petitioner failed to expressly invoke the privilege in words, the prosecutor’s use of his pre-Miranda silence during a noncustodial interrogation did not violate the Fifth Amendment. The Salinas decision is important because it gives insight into the extent that the constitutional right to remain silent truly protects citizens while speaking—or refusing to speak—to law enforcement. Furthermore, the decision created new rules governing the admissibility of silence evidence that may have a significant effect at trial and at sentencing.

After explaining the Salinas decision in more detail, this Comment briefly discusses the Supreme Court’s development of rules governing the evidentiary admissibility of silence that occurs during questioning by law enforcement. Then, this Comment addresses how Salinas has changed that framework. Finally, this Comment explains how Salinas implied the “right” answer to the only question regarding the admissibility of silence evidence that remains today.