Highly Anticipated Fifth Amendment Decision by Supreme Court in Salinas v. Texas Leaves Many Disappointed

By Brian Pasquale


On December 18th, 1992, two men were shot and killed inside their home in Houston.  There were no witnesses but a neighbor informed the police that she had observed someone run out of the house and speed away in a dark-colored car.  The investigation led police to Mr. Salinas (“Petitioner”), who was at the victim’s house the previous night attending a party.  When police arrived at Petitioner’s house he agreed to give them his shotgun for ballistics testing and voluntarily go to the police station for questioning.

The interview at the police station was noncustodial and the Petitioner was not read his Miranda rights.  Throughout the interview the Petitioner answered all of the officer’s questions.  However, when the officer asked whether the Petitioner’s shotgun “would match the shells recovered at the scene of the murder,” Petitioner declined to answer and looked down at the floor and “began to tighten up.”  The prosecutor initially declined to prosecute due to a lack of evidence; however, several days later, police obtained a statement from a man who stated that he had heard Petitioner confess to the killings.  The Petitioner did not testify at trial, and key evidence from the State included the use of Petitioner’s reaction to the officer’s question during the interview.  After being found guilty, Petitioner argued that the use of his silence violated his Fifth Amendment right.  The Court of Appeals rejected Petitioner’s argument as did the Texas Court of Criminal Appeals.


Whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief?


One of the few exceptions to the principle that the Government has the right to everyone’s testimony is the privilege against self-incrimination.  However, one who wishes to use the protection must claim it at the time that he relies on it.  This restriction provides the government with an opportunity to either offer the suspect a grant of immunity or argue that the testimony could not be self-incriminating.  The Supreme Court has established two exceptions to this requirement that the suspect assert his right.  The first is that a defendant does not need to take the stand and assert the privilege at his own trial, and the second is when law enforcement coerces the statement and thus renders the privilege involuntary.

In the current case, the Court stated that is clear that neither of the exceptions apply to the Petitioner, as he voluntarily went with the police from his home and he was free to leave the interview at any time.  Thus, he was outside the scope of Miranda and the use of his silence by the prosecution did not violate the Fifth Amendment.


While many in the legal community were anticipating the Court’s decision in Salinas v. Texas, after the ruling was handed down many of those people were left disappointed.  The Issue that many were hoping to see be resolved was whether the Government could use a suspect’s reliance on the Fifth Amendment when the suspect had not already been arrested.  However the Court announced early in its opinion that it was not necessary to resolve that question because the Petitioner did not assert the privilege.

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