The Silence is Deafening

What does silence mean? It means Genovevo Salinas isn’t going home again. It strained hope to think otherwise, but the absence of sound doesn’t necessarily suggest the absence of thought.  When the plurality opinion in  Salinas v. Texas was announced by Sam Alito, however, any lingering hope was sucked out of the room.

Contrary to many, who saw the right to remain silent as one so fundamentally well-grounded as to form the default relationship between citizen and agent of the state, there  seemed little hope of that being the case after the Supreme Court’s misbegotten  Berghuis v. Thompkins decision, holding the post-Miranda silence is not an invocation of the 5th Amendment right. That non-custodial silence would be shown any greater significance, meaning, was hard to imagine. 

At Volokh Conspiracy, Orin Kerr provides an excellent, and much needed, history of the 5th Amendment privilege against self-incrimination, the most significant aspect of which is that it is a privilege against compulsion, “nor shall [any person] be compelled in any criminal case to be a witness against himself.” 

No one made Salinas agree to voluntarily answer the questions of police, though this point depends on a fantasy that ignores submission to the shield, law enforcement training designed to overcome independent choice and the overarching sense that refusal to cooperate will result in bad things, ranging from arrest for being uncooperative if not for the underlying crime to a beating from an officer whose commands aren’t complied with fast enough.  Judges refuse to acknowledge how regular people feel when confronted by police, and so rule based on the view from high on their bench.  Reality rarely touches the world of the Supreme Court justice.

Genovevo Salinas did indeed walk into a buzzsaw of questioning. He was asked questions, and he answered them. He was asked the question he didn’t want to answer, and he went silent. He looked down, he shuffled his feet and his silence told them what they wanted to know.

The question isn’t whether anyone made Salinas answer questions. To a judge, no one did. To anyone else, it’s not so clear. He wasn’t actively forced to do so, but the magic doesn’t have to require force. The mere refusal to be cooperative carries baggage, at least in the real world.

So when Salinas stopped talking, didn’t answer a question after having been otherwise cooperative, he wasn’t made to answer. He wasn’t compelled, in the legal sense. And thus, his silence gave rise to the argument that his failure to utter a denial was tantamount to his confession. His silence spoke volumes.

There is an argument to be made that there is inadequate probative value in silence, and that the prejudice far outweighs whatever inference can be drawn, but it’s a weak argument, one that depends on the discretion of the judge.  Such discretionary evidentiary decisions are hardly an adequate safeguard of constitutional rights.  So the line is drawn by the  Salinas opinion, and it requires pre-Miranda, pre-custody invocation of the right to remain silent.  While the decision doesn’t speak to it, it would be wise to assume that the invocation will be required to be as unambiguous as it would be post-Miranda.

As I’ve suggested before, the “advice” of the internet to “just say nothing” to police isn’t sound.  After this decision, it’s affirmatively wrong.  Silence can be used against you, and saying nothing may serve to incriminate a person just like speaking.  But that doesn’t help lawyers to advise people as to what they should do.  As Orin asks,


But on the other end, the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.
In other words, Salinas has created a potential Catch-22 for citizens who are questioned in what judges think is a non-custodial setting.  Say nothing, and your silence can be used against you. Invoke your 5th Amendment privilege and it may be that your invocation can be used against you. Answer questions and that can be used against you as well.

What to do?  I would blame it all on the lawyer, which has always been one of the greatest benefits the existence of lawyers confers on society, the perfect scapegoat.


Officer, my lawyer has advised me that I am never to answer questions by the police, and since I am not a lawyer, I am constrained to follow my lawyer’s advice and refuse to answer questions.
But how many people will have the will and wits to offer a response like this to Officer Friendly’s “do you have something to hide” query?  My guess is 42.  And that’s probably what the five justices in the plurality had in mind. 


16 comments on “The Silence is Deafening

  1. C. N. Nevets

    My adult ESL students are mostly refugees. They automatically look fearful around uniformed authorities. And whenever anyone asks them questions they don’t understand, they generally stand mute with a pained, confused expression on their face. Mix those two conditions, and Salinas spells doom for them.

  2. SHG

    I suspect it will turn out to be the opposite. The inference to be drawn from silence isn’t conclusive, but merely inferential. A person who doesn’t speak English well, or of limited intellectual ability, will have a natural, obvious and strong counter argument to explain their silence as a benign reaction.

    The person who speaks English and has relatively normal intellectual capabilities is at far greater risk; they’ve got no “excuse” for invoking their right to remain silent.

  3. Jack S

    I wonder if this decision is going to lead to more “roadside chats” with the police? Why take someone into custody where they are clearly protected by the 5th Amendment when you can keep them by the side of the road, off camera, and out of handcuffs where the protections of the 5th are a little more ambiguous and less known to the suspect? I mean – everyone knows they are free to go, right? Nothing bad has ever happened when you walked away from the police.

  4. SHG

    I would certainly think so. The new rule of thumb is pretend they’re not in custody (even though they, of course, are, or at least are clearly afraid to try to leave) and question all day long, no Miranda needed.  Any cop who doesn’t avail himself of this opportunity is a blithering idiot.

  5. Chuck Weisselberg

    Two thoughts about Salinas, putting aside Orin Kerr’s argument that there is no Fifth Amendment right at stake in non-custodial questioning:

    1. This gives officers an significant additional incentive to structure an interview or interrogation as non-custodial, where it is possible for officers to do so. In addition to relieving officers of the obligation to give Miranda warnings, they can comment on a suspect’s actual silence and maybe, if you accept Orin’s point, on an express invocation.

    2. If an individual does have a Fifth Amendment privilege in non-custodial questioning, one might read Justice Alito’s opinion as requiring a more precise invocation than in custodial questioning. If a person is given Miranda warnings and is questioned in custody, the statement “I will not answer your questions” is an express invocation of Miranda’s right to remain silent. But in non-custodial questioning, would it be an assertion of the Fifth Amendment privilege? You could read Justice Alito’s opinion to require the person to say that the reason they are not answering questions is because they are asserting the Fifth Amendment privilege, and that they are not refusing to answer for some other reason.

  6. SHG

    On your first point, definitely. It’s a free ride and they would be foolish not to take it.

    On your second point, I don’t know whether Alito, et al., are prepared to try to take non-custodial interrogation out of the fifth going forward, but I’m a big fan of no defendant getting screwed, so it’s better to prepare for the worst, whether it’s doctrinally sound or not.  The same goes for the extent of formality of the invocation; it seems far wiser to promote clear invocation than to risk being to close to the edge.

    This is turning into a really hairy area of law, and my hope is to keep as many people as possible from falling into the abyss.

  7. C. N. Nevets

    Okay, so taking a break from my usual snark… serious question time. As a law-abiding lower middle income citizen, I’ve often wondered about this. I don’t have a lawyer.

    If I were to say, “Officer, my lawyer has advised me that I am never to answer questions by the police, and since I am not a lawyer, I am constrained to follow my lawyer’s advice and refuse to answer questions,” when I don’t have a lawyer, in your view, would I be vulnerable to charges of making a false statement, or anything along those lines?

  8. SHG

    Nah. For a brief, fleeting moment, you had a lawyer. A very expensive one. And that’s what he told you. And now he’s gone, into the ether. That’s how lawyers are sometimes.

  9. ExCop-LawStudent

    Can I concur in part and dissent in part?

    I don’t think that the judgment is as significant as is being claimed, for a number of reasons. First, it is a plurality decision and not automatically precedent, any more than O’Connor’s “stream of commerce” is precedent. States can address this how they desire.

    Second, as you noted above, if you have to positively invoke your right to remain silent while in custody, why wouldn’t you when not in custody?

    I agree that you shouldn’t answer questions and like your suggested response.

  10. SHG

    Can you? Sure.

    While it’s a plurality opinion, there are five votes that silence does not invoke the 5th Amendment privilege and preclude silence from being used at trial to drawn an adverse inference. While Thomas and Scalia go further, it’s precedent on that point. So no, it’s not left to the states to decide. And even if it was, they would still adhere to the ruling to the extent they chose not to assert a greater protection under state constitutions.

    As for why, because they have not be Mirandized, which was intended to instruct suspects in custody to invoke their 5th and 6th Amendment rights. If not, then why not Mirandize everyone, custodial or not, before questioning? It’s a half-a-loaf concept with the distinction being the amorphous (and nonsensical) custody between the two.

  11. ExCop-LawStudent

    OK, I see what you’re getting at. I was focusing more on what Thomas was saying about Griffin, and missed the import of the one sentence at the start of the concurrence.

  12. Onlooker

    I see now. It’s not really an unalienable right after all. It’s only a right to those who know the rules of the game and have the composure to assert it verbally (just right now, don’t get it wrong).

    Got it. Thanks Alito and gang, you’ve done us proud again.

  13. Pingback: Second Circuit Protects Prearrest Invocation of Rights | Simple Justice

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