Suspects Beware: Silence in Response to Police Questioning Could Prove as Fatal as a Confession

The Fifth Amendment to the United States Constitution\u27 provides that [nlo person shall be . . . compelled in any criminal case to be a witness against himself. \u27 The Fifth Amendment guarantees a right against government-compelled self-incrimination. A person may invoke the right against self-incrimination when he believes he is being forced by a government official to implicate himself in any crime, and his belief is reasonable considering his situation. If his belief is reasonable, he is not required to answer the incriminating question, and he cannot be punished for refusing to answer. The right to remain silent, as declared in Miranda v. Arizona, also protects a person\u27s silence in response to questions posed by government officials from use by the government in criminal proceedings. However, the right to remain silent is available only to those facing custodial interrogation, which is police questioning after a person has been arrested or otherwise deprived of his freedom of action in any significant way. In its recent decision in Salinas v. Texas, the United States Supreme Court upheld the prosecution\u27s use of a defendant\u27s pre-custodial silence as evidence of guilt in the prosecution\u27s case-in-chief. This is the Court\u27s first decision on the matter. Justice Alito, writing for a plurality of the Court, reasoned that the defendant had no right to remain silent under Miranda, so he was required to explicitly invoke the Fifth Amendment when he refused to answer a question posed by police; according to Justice Alito, he failed to do so. Therefore, nothing prevented the use of his silence by the prosecution. After providing the backdrop for Salinas, this Note will explain the requirements for a successful invocation of the right against self-incrimination, the two exceptions to the express-invocation requirement, and the Court\u27s interpretation of the Fifth Amendment as it applies to pre-custodial silence. The Note will then examine the Court\u27s decision in Salinas and conclude by exploring the possible implications of that decision