SCOTUS to Consider Whether Silence Can be Evidence of Guilt

The case deals with a very specific application of Fifth Amendment protections; if you’re not under arrest and haven’t been read your rights, can the police construe your refusal to answer questions as a sign of your guilt?



Without comment, the court agreed to hear the appeal of Genovevo Salinas, who was convicted of murder and sentenced to 20 years in prison for the December 1992 deaths of two brothers in Houston.

Salinas voluntarily answered police questions for about an hour, but he became silent when asked whether shotgun shells found at the crime scene would match a gun found at his home. An officer testified that Salinas demonstrated signs of deception.

Ballistics testing later matched the gun to the casings left at the murder scene.

Salinas was charged in 1993 but evaded arrest until his capture in 2007.

His first trial ended in a mistrial. At his second trial, Texas was able to introduce evidence of his silence in the police station, over his lawyer’s objections.

Salinas’ lawyer argued that his client deserved a Fifth Amendment protection against self-incrimination, even though he had not been under arrest or read his rights under the landmark 1966 decision Miranda v. Arizona.

Last April, the 5th U.S. Circuit Court of Appeals upheld the conviction but noted that federal appeals courts are split as to whether “pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt.”

Texas opposed the appeal, saying that the protection against compulsory self-incrimination is irrelevant when a suspect is under no compulsion to speak, as Salinas was because he was not under arrest and was speaking voluntarily. It also said that any error was harmless.


The question should be, will allowing this kind of evidence undermine the Fifth Amendment’s iron-clad guarantee against incriminating oneself? The line is sharply drawn between a case like this and one where the subject has actually been arrested and read his Miranda rights. Is there a gray area that the Supreme Court needs to clarify? If there is, I don’t see it.

Still, the idea that the authorities can use your silence in any case against you is unsettling. Whether it is worrisome enough for five justices to rule in Salinas’ favor is another question.

If Mr. Salinas didn’t want to answer questions and was not under arrest, he should have been free to leave. But the fact that the police inferred guilt because of the way Mr. Salinas maintained his silence could be seen as good police work — something the Supreme Court usually keeps in mind when ruling on thorny Fifth Amendment issues.


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