Dissenting opinion of Justice Breyer on Salinas v. Texas
Joined by Justices Ginsburg, Sotomayor, and Kagan
SUPREME COURT OF THE UNITED STATES
[June 17th, 2013]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
In my view the Fifth Amendment here prohibits the
Prosecution from commenting on the petitioner’s silence in
Response to police questioning. And I dissent from the
Court’s contrary conclusion.
I
In January 1993, Houston police began to suspect petitioner Genovevo Salinas of having committed two murders
The previous month. They asked Salinas to come to the
Police station “to take photographs and to clear him as [a]
Suspect.” App. 3. At the station, police took Salinas into
What he describes as “an interview room.” Brief for Petitioner 3. Because he was “free to leave at that time,” App.
14, they did not give him Miranda warnings. The police
Then asked Salinas questions. And Salinas answered until
The police asked him whether the shotgun from his home
“would match the shells recovered at the scene of the
Murder.” Id., at 17. At that point Salinas fell silent. Ibid.
Salinas was later tried for, and convicted of, murder. At
Closing argument, drawing on testimony he had elicited
Earlier, the prosecutor pointed out to the jury that Salinas,
During his earlier questioning at the police station, had
Remained silent when asked about the shotgun. The
Prosecutor told the jury, among other things, that “ ‘[a]n
Innocent person’” would have said, “‘What are you talking
About? I didn’t do that. I wasn’t there.’” 368 S. W. 3d
550, 556 (Tex. Ct. App. 2011). But Salinas, the prosecutor
Said, “‘didn’t respond that way.’” Ibid. Rather, “‘[h]e
Wouldn’t answer that question.’” Ibid.
II
The question before us is whether the Fifth Amendment
Prohibits the prosecutor from eliciting and commenting
Upon the evidence about Salinas’ silence. The plurality
Believes that the Amendment does not bar the evidence
And comments because Salinas “did not expressly invoke
The privilege against self-incrimination” when he fell silent
During the questioning at the police station. Ante, at 1.
But, in my view, that conclusion is inconsistent with this
Court’s case law and its underlying practical rationale.
A
The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming “a witness against
Himself.” This Court has specified that “a rule of evidence”
Permitting “commen[t] . . . by counsel” in a criminal case
Upon a defendant’s failure to testify “violates the Fifth
Amendment.” Griffin v. California, 380 U. S. 609, 610,
N. 2, 613 (1965) (internal quotation marks omitted). See
Also United States v. Patane, 542 U. S. 630, 637 (2004)
(plurality opinion); Turner v. United States, 396 U. S. 398,
433 (1970) (Black, J., dissenting). And, since “it is impermissible to penalize an individual for exercising his Fifth
Amendment privilege when he is under police custodial
Interrogation,” the “prosecution may not . . . use at trial
The fact that he stood mute or claimed his privilege in the
Face of accusation.” Miranda v. Arizona, 384 U. S. 436,
468, n. 37 (1966) (emphasis added).
Particularly in the context of police interrogation, a
Contrary rule would undermine the basic protection that
The Fifth Amendment provides. Cf. Kastigar v. United
States, 406 U. S. 441, 461 (1972) (“The privilege . . . usually operates to allow a citizen to remain silent when asked
A question requiring an incriminatory answer”). To permit
A prosecutor to comment on a defendant’s constitutionally
Protected silence would put that defendant in an impossible predicament. He must either answer the question or
Remain silent. If he answers the question, he may well
Reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.
See, e.g., Griffin, supra, at 613; Kassin, Inside Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc.
525, 537 (2009). If he remains silent, the prosecutor may
Well use that silence to suggest a consciousness of guilt.
And if the defendant then takes the witness stand in order
To explain either his speech or his silence, the prosecution
May introduce, say for impeachment purposes, a prior
Conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to
Allow comment on silence directly or indirectly can compel
An individual to act as “a witness against himself ”—very
Much what the Fifth Amendment forbids. Cf. Pennsylvania v. Muniz, 496 U. S. 582, 596–597 (1990) (definition of
“testimonial” includes responses to questions that require
A suspect to communicate an express or implied assertion
Of fact or belief). And that is similarly so whether the
Questioned individual, as part of his decision to remain
Silent, invokes the Fifth Amendment explicitly or implic-
Itly, through words, through deeds, or through reference to
Surrounding circumstances.
B
It is consequently not surprising that this Court, more
Than half a century ago, explained that “no ritualistic
Formula is necessary in order to invoke the privilege.”
Quinn v. United States, 349 U. S. 155, 164 (1955). Thus,
A prosecutor may not comment on a defendant’s failure to
Testify at trial—even if neither the defendant nor anyone
Else ever mentions a Fifth Amendment right not to do so.
Circumstances, not a defendant’s statement, tie the defendant’s silence to the right. Similarly, a prosecutor may
Not comment on the fact that a defendant in custody, after
Receiving Miranda warnings, “stood mute”—regardless of
Whether he “claimed his privilege” in so many words.
Miranda, supra, at 468, n. 37. Again, it is not any explicit
Statement but, instead, the defendant’s deeds (silence) and
Circumstances (receipt of the warnings) that tie together
Silence and constitutional right. Most lower courts have so
Construed the law, even where the defendant, having
Received Miranda warnings, answers some questions
While remaining silent as to others. See, e.g., Hurd v.
Terhune, 619 F. 3d 1080, 1087 (CA9 2010); United States
V. May, 52 F. 3d 885, 890 (CA10 1995); United States v.
Scott, 47 F. 3d 904, 907 (CA7 1995); United States v. Canterbury, 985 F. 2d 483, 486 (CA10 1993); Grieco v. Hall,
641 F. 2d 1029, 1034 (CA1 1981); United States v. Ghiz,
491 F. 2d 599, 600 (CA4 1974). But see, e.g., United States
V. Harris, 956 F. 2d 177, 181 (CA8 1992).
The cases in which this Court has insisted that a defendant expressly mention the Fifth Amendment by name
In order to rely on its privilege to protect silence are cases
Where (1) the circumstances surrounding the silence (unlike the present case) did not give rise to an inference that
The defendant intended, by his silence, to exercise his Fifth
Amendment rights; and (2) the questioner greeted by the
Silence (again unlike the present case) had a special need
To know whether the defendant sought to rely on the
Protections of the Fifth Amendment. See ante, at 4 (explaining that, in such cases, the government needs to
Know the basis for refusing to answer “so that it may
Either argue that the testimony sought could not be self-
Incriminating or cure any potential self-incrimination
Through a grant of immunity” (citation omitted)). These
Cases include Roberts, Rogers, Sullivan, Vajtauer, and
Jenkins—all of which at least do involve the protection of
Silence—and also include cases emphasized by the plural-
Ity that are not even about silence—namely, Murphy and
Garner.
In Roberts and Rogers, the individual refused to answer
Questions that government investigators (in Roberts) and a
Grand jury (in Rogers) asked, principally because the
Individual wanted to avoid incriminating other persons.
Roberts v. United States, 445 U. S. 552, 553–556 (1980);
Rogers v. United States, 340 U. S. 367, 368–370, and n. 4
(1951). But the Fifth Amendment does not protect someone from incriminating others; it protects against selfincrimination. In turn, neither the nature of the questions
Nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the
Fifth Amendment, while knowledge of any such tie would
Have proved critical to the questioner’s determination as to
Whether the defendant had any proper legal basis for
Claiming Fifth Amendment protection.
In Sullivan, the defendant’s silence consisted of his
Failure to file a tax return—a return, he later claimed, that
Would have revealed his illegal activity as a bootlegger.
United States v. Sullivan, 274 U. S. 259, 262–264 (1927).
The circumstances did not give rise to an inference of a tie
Between his silence (in the form of failing to file a tax
Return) and the Fifth Amendment; and, if he really did
Want to rely on the Fifth Amendment, then the government would have had special need to know of any such tie
In order to determine whether, for example, the assertion
Of privilege was valid and, perhaps, an offer of immunity
Was appropriate.
In Vajtauer, an alien refused to answer questions asked
By an immigration official at a deportation proceeding.
United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927). Here, the circumstances
Gave rise to a distinct inference that the alien was not
Invoking any Fifth Amendment privilege: The alien’s
Lawyer had stated quite publicly at the hearing that he
Advised his client to remain silent not on Fifth Amendment grounds; rather, the lawyer “‘advise[d] the alien not
To answer any further questions until the evidence upon
Which the warrant is based will be presented here.’” Id.,
At 106–107 (quoting the lawyer). This statement weakened or destroyed the possibility of a silence-Fifth
Amendment linkage; the Government could not challenge
His right to invoke the Fifth Amendment; and this Court
Described its later invocation as “evidently an afterthought.” Id., at 113.
Perhaps most illustrative is Jenkins, a case upon which
The plurality relies, ante, at 9, n. 3, and upon which the
Texas Court of Criminal Appeals relied almost exclusively,
369 S. W. 3d 176, 178–179 (2012). Jenkins killed someone, and was not arrested until he turned himself in two
Weeks later. Jenkins v. Anderson, 447 U. S. 231, 232
(1980). On cross-examination at his trial, Jenkins claimed
That his killing was in self-defense after being attacked.
Id., at 232–233. The prosecutor then asked why he did not
Report the alleged attack, and in closing argument suggested that Jenkins’ failure to do so cast doubt on his
Claim to have acted in self-defense. Id., at 233–234. We
Explained that this unusual form of “prearrest silence”
Was not constitutionally protected from use at trial. Id., at
240. Perhaps even more aptly, Justice Stevens’ concurrence noted that “the privilege against compulsory selfincrimination is simply irrelevant” in such circumstances.
Id., at 241 (footnote omitted). How would anyone have
Known that Jenkins, while failing to report an attack, was
Relying on the Fifth Amendment? And how would the
Government have had any way of determining whether his
Claim was valid? In Jenkins, as in Roberts, Rogers, Sullivan, and Vajtauer, no one had any reason to connect silence to the Fifth Amendment; and the government had no
Opportunity to contest any alleged connection.
Still further afield from today’s case are Murphy and
Garner, neither of which involved silence at all. Rather, in
Both cases, a defendant had earlier answered questions
Posed by the government—in Murphy, by speaking with a
Probation officer, and in Garner, by completing a tax
Return. Minnesota v. Murphy, 465 U. S. 420, 422–425
(1984); Garner v. United States, 424 U. S. 648, 649–650
(1976). At the time of providing answers, neither circumstances nor deeds nor words suggested reliance on the
Fifth Amendment: Murphy simply answered questions
Posed by his probation officer; Garner simply filled out a
Tax return. They did not argue that their selfincriminating statements had been “compelled” in violation of the Fifth Amendment until later, at trial. Murphy,
Supra, at 425, 431; Garner, supra, at 649, 665. The Court
Held that those statements were not compelled. Murphy,
Supra, at 440; Garner, supra, at 665. The circumstances
Indicated that the defendants had affirmatively chosen to
Speak and to write.
Thus, we have two sets of cases: One where express
Invocation of the Fifth Amendment was not required to tie
One’s silence to its protections, and another where something like express invocation was required, because circumstances demanded some explanation for the silence
(or the statements) in order to indicate that the Fifth
Amendment was at issue.
There is also a third set of cases, cases that may well fit
Into the second category but where the Court has held that
The Fifth Amendment both applies and does not require
Express invocation despite ambiguous circumstances. The
Court in those cases has made clear that an individual,
When silent, need not expressly invoke the Fifth Amend-
Ment if there are “inherently compelling pressures” not to
Do so. Miranda, 384 U. S., at 467. Thus, in Garrity v.
New Jersey, 385 U. S. 493, 497 (1967), the Court held that
No explicit assertion of the Fifth Amendment was required
Where, in the course of an investigation, such assertion
Would, by law, have cost police officers their jobs. Similarly,
This Court did not require explicit assertion in response
To a grand jury subpoena where that assertion would have
Cost two architects their public contracts or a political
Official his job. Lefkowitz v. Turley, 414 U. S. 70, 75–76
(1973); Lefkowitz v. Cunningham, 431 U. S. 801, 802–804
(1977). In Leary v. United States, 395 U. S. 6, 28–29
(1969), the Court held that the Fifth Amendment did not
Require explicit assertion of the privilege against selfincrimination because, in the context of the Marihuana
Tax Act, such assertion would have been inherently incriminating. In Albertson v. Subversive Activities Control
Bd., 382 U. S. 70, 77–79 (1965), we held the same where
Explicit assertion of the Fifth Amendment would have
Required, as a first step, the potentially incriminating
Admission of membership in the Communist Party. The
Court has also held that gamblers, without explicitly
Invoking the Fifth Amendment, need not comply with tax
Requirements that would, inherently and directly, lead to
Self-incrimination. Marchetti v. United States, 390 U. S.
39, 60–61 (1968); Grosso v. United States, 390 U. S. 62,
67–68 (1968). All told, this third category of cases receives
The same treatment as the first: Circumstances, rather
Than explicit invocation, trigger the protection of the Fifth
Amendment. So, too, in today’s case.
The plurality refers to one additional case, namely
Berghuis v. Thompkins, 560 U. S. 370 (2010). See ante, at
8. But that case is here beside the point. In Berghuis, the
Defendant was in custody, he had been informed of his
Miranda rights, and he was subsequently silent in the
Face of 2 hours and 45 minutes of questioning before he
Offered any substantive answers. Id., at ___–___ (slip op.,
At 2–4). The Court held that he had waived his Fifth
Amendment rights in respect to his later speech. The
Court said nothing at all about a prosecutor’s right to
Comment on his preceding silence and no prosecutor
Sought to do so. Indeed, how could a prosecutor lawfully
Have tried to do so, given this Court’s statement in Miranda itself that a prosecutor cannot comment on the fact
That, after receiving Miranda warnings, the suspect “stood
Mute”? 384 U. S., at 468, n. 37.
We end where we began. “[N]o ritualistic formula is
Necessary in order to invoke the privilege.” Quinn, 349
U. S., at 164. Much depends on the circumstances of the
Particular case, the most important circumstances being:
(1) whether one can fairly infer that the individual being
Questioned is invoking the Amendment’s protection; (2) if
That is unclear, whether it is particularly important for
The questioner to know whether the individual is doing so;
And (3) even if it is, whether, in any event, there is a good
Reason for excusing the individual from referring to the
Fifth Amendment, such as inherent penalization simply
By answering.
C
Applying these principles to the present case, I would
Hold that Salinas need not have expressly invoked the
Fifth Amendment. The context was that of a criminal
Investigation. Police told Salinas that and made clear that
He was a suspect. His interrogation took place at the
Police station. Salinas was not represented by counsel.
The relevant question—about whether the shotgun from
Salinas’ home would incriminate him—amounted to a
Switch in subject matter. And it was obvious that the new
Question sought to ferret out whether Salinas was guilty of
Murder. See 368 S. W. 3d, at 552–553.
These circumstances give rise to a reasonable inference
That Salinas’ silence derived from an exercise of his Fifth
Amendment rights. This Court has recognized repeatedly
That many, indeed most, Americans are aware that they
Have a constitutional right not to incriminate themselves
By answering questions posed by the police during an
Interrogation conducted in order to figure out the perpetrator of a crime. See Dickerson v. United States, 530
U. S. 428, 443 (2000); Brogan v. United States, 522 U. S.
398, 405 (1998); Michigan v. Tucker, 417 U. S. 433, 439
(1974). The nature of the surroundings, the switch of
Topic, the particular question—all suggested that the right
We have and generally know we have was at issue at the
Critical moment here. Salinas, not being represented by
Counsel, would not likely have used the precise words
“Fifth Amendment” to invoke his rights because he would
Not likely have been aware of technical legal requirements, such as a need to identify the Fifth Amendment by
Name.
At the same time, the need to categorize Salinas’ silence
As based on the Fifth Amendment is supported here by the
Presence, in full force, of the predicament I discussed
Earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination
Through silence. That need is also supported by the absence of any special reason that the police had to know,
With certainty, whether Salinas was, in fact, relying on the
Fifth Amendment—such as whether to doubt that there
Really was a risk of self-incrimination, see Hoffman v.
United States, 341 U. S. 479, 486 (1951), or whether to
Grant immunity, see Kastigar, 406 U. S., at 448. Given
These circumstances, Salinas’ silence was “sufficient to put
The [government] on notice of an apparent claim of the
Privilege.” Quinn, supra, at 164. That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas
And mentioned by the prosecutor. See 380 U. S., at 614–615.
D
I recognize that other cases may arise where facts and
Circumstances surrounding an individual’s silence present
A closer question. The critical question—whether those
Circumstances give rise to a fair inference that the silence
Rests on the Fifth Amendment—will not always prove easy
To administer. But that consideration does not support the
Plurality’s rule-based approach here, for the administrative problems accompanying the plurality’s approach are
Even worse.
The plurality says that a suspect must “expressly invoke
The privilege against self-incrimination.” Ante, at 1. But
Does it really mean that the suspect must use the exact
Words “Fifth Amendment”? How can an individual who is
Not a lawyer know that these particular words are legally
Magic? Nor does the Solicitor General help when he adds
That the suspect may “mak[e] the claim ‘in any language
That [the questioner] may reasonably be expected to understand as an attempt to invoke the privilege.’” Brief for
United States as Amicus Curiae 22 (quoting Quinn, supra,
At 162–163; alteration in original). What counts as “making the claim”? Suppose the individual says, “Let’s discuss
Something else,” or “I’m not sure I want to answer that”; or
Suppose he just gets up and leaves the room. Cf. Davis v.
Mississippi, 394 U. S. 721, 727, n. 6 (1969) (affirming “the
Settled principle that while the police have the right to
Request citizens to answer voluntarily questions concerning unsolved crimes[,] they have no right to compel them
To answer”); Berkemer v. McCarty, 468 U. S. 420, 439
(1984) (noting that even someone detained in a Terry stop
“is not obliged to respond” to police questions); Florida v.
Royer, 460 U. S. 491, 497–498 (1983) (plurality opinion).
How is simple silence in the present context any different?
The basic problem for the plurality is that an effort to
Have a simple, clear “explicit statement” rule poses a
Serious obstacle to those who, like Salinas, seek to assert
Their basic Fifth Amendment right to remain silent, for
They are likely unaware of any such linguistic detail. At
The same time, acknowledging that our case law does not
Require use of specific words, see ante, at 2, leaves the
Plurality without the administrative benefits it might
Hope to find in requiring that detail.
Far better, in my view, to pose the relevant question
Directly: Can one fairly infer from an individual’s silence
And surrounding circumstances an exercise of the Fifth
Amendment’s privilege? The need for simplicity, the
Constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court’s
Case law all suggest that this is the right question to ask
Here. And the answer to that question in the circumstances
Of today’s case is clearly: yes.
For these reasons, I believe that the Fifth Amendment
Prohibits a prosecutor from commenting on Salinas’s
Silence. I respectfully dissent from the Court’s contrary
Conclusion.
