Vol. 28 No. 14 – A Non Custodial Suspect Must Invoke the Fifth Amendment For It To Apply


On June 17, 2013, the United States Supreme Court, once again addressed the protections of the Fifth Amendment and, in the case of Salinas v. Texas, ruled that “a witness who ‘desires the protection of the privilege . . . must claim it’ at the time he relies on it.”

The Court, in a 5-4 decision, held that requiring a non custodial suspect to specifically invoke the Fifth Amendment, “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, or cure any potential self-incrimination through a grant of immunity . . . .”

This case joins a series of decisions by the Supreme Court, starting back in 2010, regarding the protections established under Miranda v. Arizona.  In June 2010, JONES & MAYER reported that the United States Supreme Court, in the case of Berghuis v. Thompkinshanded down another major decision regarding the procedure established in the 1966 case of Miranda.  We then referred to prior Client Alerts, Vol. Twenty-five, No. 4 (3/1/10) and Vol. Twenty-five, No. 8 (4/20/10) for previous decisions regarding Miranda.

The Court held in Berghuis that a suspect’s ” . . . silence during the interrogation did not invoke his right to remain silent.  A suspect’s Miranda right to counsel must be invoked unambiguously. If the accused makes an ‘ambiguous or equivocal’ statement, or no statement, the police are not required to end the interrogation, or ask questions to clarify the accused’s intent.”

In the instant case of Salinas v. Texas, the Court held that when one is not in custody, and refuses to respond to questions, his silence can be brought up by the prosecution at trial as an indication of guilt.

The Court noted that “(w)ithout 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 ballistics 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 prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’”

Supreme Courts Rationale

“The privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone’s testimony. 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.”

The Court noted that “(w)e have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v.Califor­nia, 380    U. S. 609 (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a criminal defendant has an ‘absolute right not to testify.’”

And, in addition, the Court noted, “we have held that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.”

However, in the instant case, those exceptions do not apply. “Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and ‘was free to leave at any time during the interview.’  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 voluntarily invoking the privilege.”

As such, the Court found that “(w)e have before us no allegation that petitioner’s failure to assert the privilege was involuntary, 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.”

The Court concluded by stating that “petitioner and the dissent argue that reli­ance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. But whatever the most probable explanation, such silence is ‘insolubly ambiguous.’  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 Amend­ment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his ‘burden . . . to make a timely assertion of the privilege.’”


As noted above, since 2010, there have been a series of decisions from the U.S. Supreme Court addressing one’s rights under Miranda v. Arizona.  It is, obviously, very important for all law enforcement officers to be aware of those decisions, and apply them appropriately.

In some cases, the distinctions drawn in individual situations can result in challenges as to whether the statements were, in fact, voluntary. Several arguments of that nature were raised in the Salinas case, by both the petitioner and the dissenting court.

What is clear, as a result of this decision, is that a suspect being interviewed, in a non custodial setting, must invoke his Fifth Amendment rights in order to preclude the prosecution from being able to refer his refusal to respond to potentially incriminating questions as an indication of guilt.

This decision is a departure from what some thought was established law.  As such, and as we consistently note, it is imperative that each agency receive advice and guidance from its designated legal counsel before applying new legal concepts.

As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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