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Salinas v. Texas: Claiming the Right Against Self-Incrimination

June 17, 2013 Criminal Law and Procedure

The Supreme Court today ruled that a witness who wishes to use the protection of the Fifth Amendment privilege must claim it explicitly at the time he relies on it.

In the case of Salinas v. Texas, Salinas voluntarily went to the police station to answer questions regarding a murder. During questioning Salinas did not respond when asked if he thought that the shotgun shells found at the scene of the crime would match the shotgun he owned.

At trial, the prosecution offered Salinas’s silence as evidence of his guilt of the crime.  Salinas was found guilty. On appeal, Salinas argued that this violated his Fifth Amendment right. The Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself.

In general a person must explicitly invoke the Fifth Amendment right at the time of questioning for that right to be effective. There are two exceptions to that requirement.  First, a criminal defendant is not required to take the stand in order to assert the privilege.  Second, a witness’ failure to invoke the privilege is excused where the government has coerced the witness into forfeiting the privilege.

Related: Howes v. Fields: The Supreme Court Clarifies Miranda Rules

Salinas argued for an exception where a witness stands mute because an answer would cause suspicion. The Court rejected this argument, stating that such an exception would unnecessarily burden law enforcement’s job of obtaining testimony.

The Court listed two rationales for the requirement that a witness must claim the privilege. First, so that the government may either show that the testimony would not be self-incriminating or make an offer of immunity. Second, so that a court can make a record of the reasons a witness refused to answer a question.

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