[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Monday in Salinas v. Texas [SCOTUSblog backgrounder] that the petitioner’s Fifth Amendment [text] claim fails because he did not expressly revoke the privilege against self-incrimination. Genovevo Salinas was suspected of being involved in a murder. He consented to a search of his home, where police found a shotgun, and consented to questioning at the police station, but he was not arrested or given Miranda warnings [backgrounder]. An officer asked, “if the shotgun [his father had given them] would match the shells recovered at the scene of the murder.” Salinas looked down and refused to answer the question. The state then offered the refusal to answer as a key piece of evidence against Salinas, which he contends was a violation of his right against self-incrimination. In an opinion by Justice Anthony Kennedy, the Supreme Court disagreed:

It has long been settled that the privilege [against self-incrimination] “generally is not self-executing” and that a witness who desires its protection “must claim it.” Although “no ritualistic formula is necessary in order to invoke the privilege,” … 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.

Justice Clarence Thomas filed a concurring opinion, joined by Justice Antonin Scalia. In Thomas’ view, “Salinas’ claim would fail even if he had invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.” Justice Stephen Breyer filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. In Breyer’s view, “the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning.”

The Supreme Court heard oral arguments [JURIST report] in the case in April. The attorney for Salinas argued that using Salinas’ silence in this way violates The Supreme Court’s 1987 decision in Griffith v. Kentucky [opinion]. An assistant district attorney in Houston argued on behalf of Texas. He asserted that “absent invocation” of the right to silence, refusing to answer a question can be used as evidence against a defendant’s innocence. The federal government supported this view, arguing that the court’s 1983 decision in Minnesota v. Murphy [opinion] holds as “the general rule that the Fifth Amendment privilege is not self-executing and that a suspect must invoke it in order to claim its protection to a noncustodial interview in.”