Previous Post
Next Post

In the video above, the non-attorney spokesman advises citizens that “you can simply remain silent” during police questioning. Not anymore you can’t. “In a 5-4 ruling on Salinas v. Texas in which the conservative members of the Court and Anthony Kennedy determined that if you remain silent before police read your Miranda rights, that silence can and will be held against you,” as Alexander Abad-Santos at reports. And that means “if you’re ever in any trouble with police and want to keep your mouth shut, you will need to announce that you’re invoking your Fifth Amendment right instead of, you know, just keeping your mouth shut.” The majority ruling held . . .

When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.

Click here to read the full ruling. If you can’t be bothered you’d do well to follow Mr. Adbad-Santos’ advice. If the po-po are questioning you about, say, a defensive gun use, and you want to STFU (sensibly enough), you now have to “expressly” invoke your right to silence.

Quite what those “magic words” are, legally speaking, is not clear. I’d go with “I refuse to answer any questions until I speak with my attorney.” Early. Like . . . straight away.

Previous Post
Next Post


  1. Say those words if a cop asks how the weather is. They’re some of the most dangerous people you can run into out there.

  2. Really? REALLY?! Do I now have to preface everything I write or say with “I’m invoke my First Amendment rights”?

    Maybe the lawyers around here will point out how it isn’t actually stupid, but on the face of it, it seems silly. Oh well. I have B.S. after my name, not J.D., so maybe it makes sense to someone else.

    • carrying you must also wear a shirt that says you are invoking your second amendment rights. You know. Just so they don’t arrest you for challenging their authority.

    • No, I meant the First. I could also add declaring it when I enter a house of worship, reading a newspaper (hypothetically, anyway), or hanging out in a group in public.

      • Duh what? Little lost lamb here, meant to go above responding to a post that I think went bye bye.

      • As a J.D. – which, frankly, is a synonym for B.S. – it is a quirk of the Miranda decision. The Fifth Amendment allowed you to refuse to answer questions but it had to be invoked. Miranda created a a warning system that advised you of the right to remain silent that arguably is more firmly rooted in the Sixth Amendment than the Fifth Amendment. This weird mix led to today’s oddball decision. The Fifth always had to be affirmatively invoked but due to popular culture that gets muddied with the “right to remain silent.” Best I can do late at night.

        • The right to remain silent has nothing to do with the sixth amendment. The only part of the Miranda warnings bearing on the 6th is the advice given to the person arrested that they have the right to counsel. The “silence” bit is entirely from the 5th.

        • I agree, but both rights are intertwined and Miranda was primarily argued as a Sixth Amendment case. “Nothing” is a very strong word.

        • Ropingdown,

          It’s been a long, long time since CrimPro, and you may be more up on this than me. But I recall that the Miranda decision surprised legal scholars at the time precisely because SCOTUS based the decision on the Fifth, which was not argued before the Court and which had previously only been applied to judicial proceedings and not custodial interrogations. The Sixth had been applied to custodial interrogations, and the more logical argument was that the right to counsel during such interrogations would be meaningless without a corollary right to STFU until your attorney arrived. I think Orin Kerr, which I noticed that you referenced in later comments, touched on some this in his article on Volokh. I will now STFU because this commentary seems more appropriate for Volokh than TTAG.

    • Really? REALLY?! Do I now have to preface everything I write or say with “I’m invoke my First Amendment rights”?

      It is a right, not a privilege. Apparently, the SCOTUS forgets that rights are imbued by our creator (thanks mom and dad!) and not by the government. I should not have to expressly invoke a right in order to enjoy the protections it offers. Silence is not an admission of guilt.

  3. Good to know, even though I think its total bs that they can now infer guilt based on a lack of response. Where is the line drawn? Someday asking for a lawyer will mean you are guilty, because if you are innocent, why would you need a lawyer?

    • Here’s the catch that defendants worry about: Sure, you can take the stand in court and (even correctly) assert that the officer is falsely representing your state of mind and making something out of nothing. However, as things actually go, the prosecutor can, at that point, introduce character evidence about you that would otherwise be prohibited, such as prior convictions or a well-known embarrassing fact that seems relevant to the judge. For most no-serious-priors defendants, rebuttal is possible though still risky. It does seem like a bit of screwy law for the moment. The correct procedure for defense counsel is to cross-examine the testifying cop and try to make his “fine observations” seem unreliable or worse, cooked-up.

      • The only character evidence regarding prior convictions that is admissible is whether you’ve been convicted of a felony (and how many) and whether you’ve been convicted of a crime of moral turpitude (and how many). Unless the defendant starts talking about priors.

        • Not even those are admissible in the usual case unless the defendant takes the stand or offers his own witnesses to provide counter-testimony about his own actions which he believes the witness falsely characterized. Character is not an issue until the defendant makes it an issue (in my state, at least). Former convictions, including crimes of moral turpitude, are considered needlessly prejudicial, and are not evidence of the crime for which the defendant is being tried.

        • “Unless the defendant starts talking about priors.” I’d say that isn’t required, in PA at any rate. The defendant simply has to make character an issue, and that can be done by becoming a witness, testifying. The character of witnesses, but not defendants, is always fair game. That is why defendants with a record (or a knowledge of their own guilt) generally do not take the stand. That, and taking the stand just to plead the 5th is futile!

  4. *facepalm*

    This is idiotic. This is not Britain where you “may harm your defense if you do not mention when questioned something which you later rely on in court”.

    • If you don’t say, “I’m innocent”, it that treated as an implied confession? O_o

      • In Britain you must take the stand. Your refusal to answer questions will be described as evidence of guilt. Mother Country, indeed.

  5. “the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question”

    If you want to be silent, then BE SILENT. You can’t be answering the odd-numbered questions and then staying mum on the evens without creating the impression that there are just some things you don’t want to respond to. I will try to read the whole judgment later, but I think this will turn out to be less than it appears.

    • i skimmed the opinion, and it seems this is basically what they said. once you start answering questions, silence could be you thinking up a lie, or anything else. The assumption is that once you open your mouth, you have waived your right, unless you invoke.

      my personal opinion is that 99% of adults KNOW that they have the right to remain silent, the issue is self control.

    • From another SCOTUS case, it isn’t enough to merely be silent under questioning. You must tell the interrogator(s) that you are invoking your Fifth Amendment right, and then be silent.

      • But even this requirement is bogus. Consider a police officer accusing you of being intoxicated in public. If you respond, anything you say would incriminate you if your speech was impaired. But what if you have other conditions that impair your speech? For example impaired speech is a rare although documented effect of migraine headaches or even low blood sugar — both temporary conditions with after-effects that would mimic hangovers no less.

        What the hell is wrong with our courts?

      • Dyspeptic, that case is Berghuis v.Thompkins, 560 U. S. 370, and Alito specifically cites the case as requiring the Salinas result.

    • Prosecutors do this all the time for DUI cases. Under the “consciousness of guilt” theory, your refusal to do field sobriety exercises or submit to a breath/blood alcohol test can be used against you as evidence that you knew you were DUI.

      • At least at the Federal Constitution level (some states provide more protection) field sobriety tests, blood, and breathalizer tests (or dental impressions, etc.) are not considered “testimony” within the meaning of the 5th amendment, and thus do not come under the protection of the 5th Amendment right not to be forced to testify against yourself. Since the only alternative is to actually force the driver stopped to provide the demanded physical evidence, it is a reasonable conclusion to infer that refusing to provide it is evidence of guilt, barring other unique factors in the matter.

    • Exactly. This case does NOT hold that your right to remain silent can be used against you unless you invoke the right.

      Instead, this case holds that if you voluntarily answer questions, but then refuse to answer one question in particular (which in this instance was an rather important question about ballistics), your refusal to answer that one question can be used as evidence of guilt.

      I don’t see this case as threatening to liberty (and I don’t typically say that about government interference in our lives).

      • I’ll politely disagree with the statement if what you meant was “your remaining silent cannot be used against you if you don’t invoke the right.” The holding emphatically says that your remaining silent can be used against you if you do not actively state at the time that you are relying on that right. In the words of Justice Alito, To prevent the privilege against self-incrimination from shielding information not properly with in its scope, a witness who ‘desires the protection of the privilege . . . must claim it’ at the time he relies on it.” By pointing out that consistency with Berghuis v.Thompkins, 560 U. S. 370, requires this result, Alito made it emphatically clear that the number of questions is not relevant, only the silence when asked a question. If you don’t want your reaction to a question to become evidence through testimony, you must, as Alito practically shouts, actively assert your 5th Amendment right. Obviously there are open questions about what this will mean in practice, but the number of questions is nowhere mentioned in the opinion.

        • Your correction is welcome. Thank you.

          Alito’s opinion (at **4-5) preserves the right to remain silent under Miranda, however, so it is still unclear to me how this opinion is an infringement of our 5th amendment right against self-incrimination in court. As Alito wrote:

          “Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the ‘inherently compelling pressures’ of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467-468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege ‘unless [he] fails to claim [it] after being suitably warned.’ Murphy, supra, at 429-430.”

        • Motha, I agree that the opinion does not affect the right of a defendant to take the 5th in a trial. What people object to is that silence in a non-custodial interview can be testified about later in court, characterized, by the LEO. To me this isn’t a problem and fits in with prior holdings. However, there is a sort of catch-22: The LEO can testify about what he thinks the silence meant, but if the defendant takes the stand to say “no, I didn’t mean that at all,” his character …as a witness…becomes an issue and his priors can come into evidence, together with other appropriate (ask the judge) character-related material. This upsets some people. It isn’t really new.

        • Or, put another way, the quote regarding Miranda points out exactly why law enforcement must read you your Miranda rights. You don’t have to think of them. You do have to assert the rights after having been read the rights. Under Salinas in a non-custodial setting the LEO does not have to read you your rights. You have to know them and actively assert them. But then again you aren’t in custody, arrested, and can leave.

        • So if the friendly chat with the copper (with or without his Mirandizing you) proceeds and you realize that he may be fishing for BS to hang you with can you then assert the 5th? And perhaps also state anything you previously stated is _________________?

          In otherwords can you stop running off at the mouth or “unblabbing”?

        • Neiowa: Yes, you can stop blabbing at any time by asserting your intention to exercise your right to remain silent. What you said before doing that may still be used against you. If you start blabbing again, that bit may be used against you. Your protection, such as it is, begins with your active assertion followed by silence (other than statements like “am I free to go now?” The protection ends when you start up again. Yes, you can switch it on and off, but at your own peril. If you start blabbing again and there is no recording, you will have great difficulty establishing in court where the protection begins.

    • I must have indigestion: The case doesn’t say you can’t fail to answer every other question. It says you must actively (explicitly) state that you are relying on your right in remaining silent in response to a question. You can’t “just do it.” As far as anyone knows at the moment, it may be perfectly OK, under Salinas, to assert the right to only the odd numbered questions. But you must actively assert the right each time, not silently. It is a short opinion that does leave open questions.

  6. I think Orin Kerr, writing on Volokh, gets the puzzle of the Salinas opinion: The plurality opinion (3 of the 5 in the majority) does hold that the 5th Amendment right has to be actively asserted during voluntary (non-custodial) interviews by police if the person being interviewed does not want his refusals to answer, or suspicious hemming and hawing, pointed out by the police witness during a subsequent trial. (The other 2 in the majority would get rid of Miranda.) The 5th Amendment (under Griffin) provides a clear procedure in Court: The judge makes a determination whether the assertion is valid or not. Miranda extended the right to remain silent without punishment during post-arrest (custodial) interrogation. But what is going to happen if one is voluntarily submitting to be interviewed? How many times does a person mention the right? How is he protected from getting caught by his responses to another of the fifty questions the cop asks? If he is standing there after asserting the right, why? What does the cop have to do after one asserts that, given that the person is speaking voluntarily. The Court hasn’t ruled before on a 5th Amendment right outside the courtroom, except for the Miranda-related custodial interrogations. Salinas doesn’t provide details to a right that has never been advanced before (the 5th in a non-custodial setting).

    The late Justice Robert Jackson was probably right to advise silence except with the advice of your attorney in the room: Generally, you cannot possibly help your cause by speaking voluntarily with the police, except when filing a complaint, and that briefly. If you carelessly tell a dangerous truth, you’re screwed. If you tell a lie, you may well be screwed later just for that act. What’s left? “Officer, am I free to go?” If she says ‘yes,’ then go. It is a truth often recognized, though, that a person expecting arrest for some reason will often try to talk their way out of it: That is almost always a losing concept. We’ll see what cops and courts actually do with Salinas.

      • Yeah… But ‘never’ is a very strong word. Maybe, “Never speak to the police without an attorney unless you’re in critical need of their help.”

        The classic lose-lose scenario is crimes against kids. Sadly, many kids are hurt by a parent. Because of this, cops often take a confrontational tone when interviewing (innocent) parents when an (unknown) stranger harms their kids. There’s a fine line to walk between giving the cops info to catch the perp and (possibly falsely) incriminating yourself.

        Any lawyer want to tackle the above hypothetical?

        • The hypothetical is difficult to comment upon. Erroneous prosecutions of parents are not rare because harm to children is so emotionally charged. Presumably the child has already been found, and the police are inquiring to investigate, to affix blame. If you can afford it, it is clearly better to agree to meet with the police with your attorney present. If you can’t afford it and there is any remote possibility your own conduct may be called into question, you should assert your right to remain silent. If subsequently taken into custody for interrogation, you should again assert your right and request that an attorney be provided for you.

  7. You can also say, “That warrant gives you the power to search me, and I can’t stop you and won’t resist, but I DO NOT give my consent.”

  8. I have always thought this made more sense. If you are simply silent, and don’t specifically say something like “I’m silent because, although I am innocent here, I want to speak with my lawyer first” then your silence seems, (former) legal presumption to the contrary notwithstanding, like you’re guilty as all hell and are not protesting your innocence simply because you know perfectly well that you can’t and that they caught you ‘fair and square.’ It’s human nature, upon being apprehended/accused of something, to strongly and vociferously protest our innocence, if we are indeed innocent. To me, even mentioning the fifth amendment or a lawyer suggests that one has given forethought to what might happen if confronted by the arm of the law, which in turn suggests that they have been doing something which they know might invite the law to their door, which suggests that they are guilty. (Fortunately, the law does not see things the way I do on this, otherwise the Fifth Amendment, which is a wonderful thing, would not exist.)

    • You might really want to watch the video that Wassim cites several comments further down. If you haven’t seen it, it is worth the time. The participants making the presentation, a cop and an attorney, are first rate in the piece. People have been astounded, after the fact, by how their innocent conversations with an LEO got them into trouble, often for very unforeseen infractions. Businesspeople speaking with IRS investigators or the EPA have had similar experiences. They are on the hunt, and you can’t know what for. I wish it were otherwise.

  9. So how do I make sure my invocation of my 5A right isn’t conveniently forgotten by the nice officers? Is there like a form I’ll need to file?

    I hate everything about this.

    • You don’t have to worry about it, Matt. The case only applies to a non-custodial interview, set of questions. If the LEO is asking you questions, just ask “am I free to go?” If he says “no” then you are effectively under arrest. Of course there are circumstances during which you must remain in place, but do not need to answer questions. A traffic stop is an example, obviously.

      • Speaking of traffic stops, I got pulled over the other day.
        Cop: “License, registration, insurance card.”
        I hand them over, noticing she’s standing there with her hand on the butt of her holstered weapon.
        Cop: “Do you know why I pulled you over?”
        Me: “No.”
        Cop: “You didn’t stop for that stop sign.”
        Me: “”
        Cop: “I’ll be right back.”
        (10 minutes elapse)
        Cop: “What’s your phone number?”
        Me: “I’m not giving you my phone number.”
        Cop: “What?”
        Me: “I’m not giving you my phone number.”
        Cop: “If there’s a problem with the ticket, we’ll need to get in touch with you, what’s your phone number?”
        Me: “You have my address, send me a letter.”
        Cop: “Are you refusing to give me your phone number?”
        Me: “Yes.”
        She glares at me for a minute, then writes “refused” in the phone number square, explains how signing the ticket is simply an acknowledgment of receipt.
        I take the ticket, read it completely, then sign it and hand the clipboard back.
        Cop: “Is there a problem, do you have a problem?”
        Me: “No.”
        Cop: “You have seemed uncooperative & somewhat hostile since the beginning of our encounter.”
        Me: “”
        Cop looks at me for a moment, then tears off ticket, says “have a nice day.”

        I pretty much did STFU, and the result was “you seem hostile”.
        It’s a no-win in ANY encounter with the PO-PO.

        I suppose I should have said, “I am exercising my natural right, guaranteed by the Fifth Amendment to the Constitution of the United States, a document which you have sworn to uphold and defend, to remain silent during this interview.”
        I bet THAT would have gone over well.

    • Matt, I overlooked something in your question: Of course there is an “I said but the cop says” issue. That is why custodial police interrogations must, in many jurisdictions, be recorded. That is also why you should not answer questions in a non-custodial setting without legal advice. Actively express your right. Ask immediately if you are free to go. If so, depart or shut the door. If, god forbid, you are taken into custody, definitely explicitly claim your 5th Amendment right again and ask that an attorney be provided, if you don’t have one. Life!

    • This is a fantastic video. If you don’t watch part two, basically the police officer says everything the lawyer says is correct.

      • I just watched the first five seconds to determine the participants: That video is legend. At the very end you’ll note that the cop says things like (from old memory) “a person may free themselves from further inquiry if they just provide a bit of information.” This can be true, and is highly fact dependent. It is still risky to talk without counsel present. Of course there are times when you can answer an LEO’s questions, i.e. “did you see the robber flee from your property?” Sure, answer it. But giving a witness statement in unambiguous circumstances is not the kind of LEO questioning people are warning against. If it is ambiguous, if that fleeing robber was a fellow hood, you better shut up. If the fleeing robber was really your enemy running off with your dope, you better shut up. Hopefully people can recognize that distinction when absolute words are used in advice!

  10. Is it just me or does “failed to expressly invoke his privilege” have horrible implications.

    • Agree or not; the distinction in this case was that the man was talking freely, then stopped without expressly invoking the 5th.

      Always a good idea to simply invoke the 5th at the earliest opportunity, and continue to invoke it at each question, but there still is the question of whether complete silence can be used against you.

      • They can’t use your insistence on leaving against you. The error is to start answering any questions or, worse, telling a lie. The Court has been through this whole middle ground question, the difference between “free to go” and “in custody.” Cops like to pretend there is a middle ground where you can’t leave but you aren’t under arrest. Not for Miranda there isn’t.

    • It a sense, there shouldn’t be any implications at all. The person referred to is not under arrest. He is free to go. He doesn’t even have to listen to the question, but can simply reply “am I free to go?” If he is told he may not leave and is asked further questions, he is under arrest, and Miranda comes into effect. What a person needs to know is that reciprocating, joining in a question session with LEO’s when not under arrest, is not a duty or obligation, and should, without special personal motivation, be avoided.

      What interests me after the Salinas holding is this: What is the Court going to decide regarding the NYC stop-question-frisk procedures? I think they’ve drawn a line they’ll have to live with, and it will make the NYC PD procedures unacceptable to them. We’ll see.

      • I’m almost certain NYC’s stop and frisk is not up for SCOTUS review. A federal judge is looking at it. Lawsuits from various civil liberties organizations and the Obama Justice Department got the legal ball rolling.

        • I think the stop-and-frisk is clearly headed for SCOTUS, because there are already apparently conflicting cases for similar police practices from other circuit courts of appeal. It looks unavoidable to me. That doesn’t mean it won’t take a long time or become moot through voluntary consent agreements and private settlements at a lower level. I’ll believe that only when I see it.

        • I just realized my wording might have been ambiguous: What I meant is “the Court has just drawn another line, a further clarification, between non-custodial versus custodial questioning. Therefore WHEN the case gets to the Court (read ‘if’ if you want) the court is going to have to draw much clearer lines as to stop-and-frisk since the variation in rights is now more clear, and a stop-and-question-and-maybe-frisk (NYPD’s procedure) is not so innocent looking. They have made their own future case more difficult to avoid. I think NYPD’s procedure is not constitutional, I should say.

        • Coming back to this comment as to NYPD’s procedures, after reviewing Terry Stop cases and Salinas, I strongly believe the Court will be forced to invalidate the NYPD procedures in order to save their own distinctions drawn in Terry, Miranda, and now Salinas. I know, “so who asked?” Laugh.

  11. Jeez Louise, just what is taking so damn long for the gub’mint to get done dismantling the Constitution/Bill Of Rights?

  12. This is the same supreme court we expect to uphold individual liberties. Bwahahahaha

    • You have my sympathy. What, for example, are you supposed to do when the person asserts their right but isn’t in custody and just stands there? What does it mean if you then ask a different question after they assert their right, and the person answers it? The relative clarity of Miranda isn’t there. There was never “a right against self-incrimination” except in a court room until 1965, Miranda. Even the courtroom right was obscure in its implementation requirements before Griffin. I note, that two of the majority (Scalia and Thomas) wanted to role back Miranda.

  13. Wow. Just – fu<king – wow.

    Guess its rude to clam without givin' proper notice – and the sods doesn't like rude, does they?


  14. Damnit. And Fornicate the Supremes with the same cactus as the FBI I mentioned earlier….

    No, wait… get a fresh cactus.

    Damn, it’s a bad day to be a cactus.

  15. Hmm, we used to use “I reserve my right to remain silent”. Preeemptively. Seems we were right to have done so…

    Tyranny’s nook just got one bit tighter.

  16. Potential rape victims must expressly invoke their right to refuse bodily violation… you know, since silence now implies consent.

  17. Robert:

    While there are issues with the case, there is a difference between “expressly invoking your right to silence” in all circumstance, and simply remaining silent. Your mistake (and others it seems) is in thinking that this is new development. It isn’t. I suggest y’all actually read the entire opinion, instead of relying on the Cliff-notes version. And I say that there are issues with this case because the officers specifically asked an incriminating question, but also want to claim that the suspect was neither under custody nor being interrogated. That’s troubling. is a good ConLaw primer on point.

  18. This is what happens when you let the wolves decide what is for dinner.

    The idea that you rely on the government (SCOTUS) to decide whether or not the government behaved legally and properly is idiotic.

    You cannot expect lifetime political appointees to decide fairly on any issues. Those Judges all have agendas that closely align with the interests of the rest of the government. If they were not pro big-government then they would not of had a chance of making it to being in the supreme court in the first place.

    USA’s political climate is increasingly becoming almost identical to Germany’s 1930s.

Comments are closed.