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SCOTUS Decision: I’m Pleading the 5th

I Plead the Fifth

On June 17th, the Supreme Court decided to pass a “landmark decision” in regards to Salinas v. Texas which impacts how one can go about claiming the right to not incriminate oneself (otherwise known as “pleading the fifth”).  The decision essentially stated that when an individual is not placed under arrest, the individual must explicitly evoke their 5th amendment right and that simply remaining silent does not mean their right has been evoked.  Depending upon the circumstances, this silence can be used to infer possible guilt of the party in question.

To really understand the context of this ruling, let me first start with a quick background to this decision.

This all started with a murder case conducted in a Texas state court.  In 1992, Houston police officers found two homicide victims.  The investigation had then led officers to Genovevo Salinas. Salinas voluntarily agreed to accompany the officers to the police station, where he was then questioned.  At this time, Salinas was not under arrest and had not been read his Miranda rights.  Salinas had the ability to leave at any point while he was being questioned.

Salinas answered every question until an officer asked him whether the shotgun shells found at the scene of the crime would match the shotgun found in Salinas’ home.  At this point, the defendant fell silent and “looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up” (according to the statements made by the state prosecutor).

A ballistics analysis later matched Salinas’ gun with the casings at the scene.  Police also found a witness who said Salinas admitted to killing the victims.  In 1993, Salinas was charged with the murders, but he could not be found until 15 years later.

During the trial, the prosecution introduced the evidence of Salinas’ silence and body language in response to the question about the gun casings.  Salinas objected, arguing that he could invoke his Fifth Amendment protection against self-incrimination.  The trial court admitted the evidence and Salinas was found guilty and sentenced to 20 years in prison and a $5,000 fine.

The question boiled down to whether or not Salinas’ body language is allowed to be presented as evidence.

I say YES!

First of all, Salinas had the ability to leave the questioning period any time he liked.

All of his answers from this questioning period were applicable to be used in court as evidence.  Since he did not leave nor claim his right to not self incriminate, I believe that the answer his body language gave is also admissible in court.

There’s been plenty of dissenting chatter in the public sphere about Supreme Court’s decision to allow this piece of evidence stand.  Personally, I think it’s time for these chatters of dissent to stop. Ladies and gentlemen please plead the fifth!

Now we are all very familiar with our fifth amendment rights.  Just to recap a bit, the pertaining part of the 5th amendment in this case is “No person shall be…compelled in any criminal case to be a witness against himself”.  There are other things the amendment guarantees such as our right in regards to double jeopardy, due process, and eminent domain. The important thing here to focus on is the ability to not self incriminate.

Some people will argue that to not self incriminate is a natural right.

I think they are only partially right.

If one really focused on the language of the Constitution, the key word is compelled.  We are allowed the right to not be forced into incriminating ourselves but that does not stop you from doing it freely.

The Miranda rights are read to you because you are in custody, and you can’t just get up and leave.  If you had incriminated yourself without explicitly knowing your rights under these conditions, the law enforcement officers are essentially forcing incriminating evidence out of you.

Under a different circumstance where you basically waltz into a police department and partake in a questioning period willingly then… anything you say or may do are going to be used against you! (sound familiar?)

There has been all types of people have used their 5th amendment rights in the past, and some of them have gotten off clean while others haven’t.  People such as Don King, Colone Oliver North, Casey Anthony, and even O.J. Simpson have all claimed their right to not incriminate themselves when they were questioned, as well as they should have (and O.J. I’m talking about you especially).

Look, we have all watched enough Law and Order and CSI to know that when you are being questioned, and you get asked that one question where you might start to incriminate yourself…

What do you do?

You shut up and ask for a lawyer.

Salinas paid for his slip up during the questioning period, and he couldn’t answer because he got nervous.  The police had hit the nail on the head.  If he was really trying to evoke his 5th amendment right, we would definitely all be made aware of it (it’s really not that hard).  He got nervous and couldn’t answer because the bullet casings did fit his shotgun.  He got nervous and couldn’t answer because he did murder two innocent people in their own home.  He got nervous and couldn’t answer probably because he started planning for his 15 years of hide-and-seek with law enforcement.  

The take away from this Supreme Court decision?

You have the right to not self-incriminate.



William Ng | Counterpoint

President of the University of Miami Young and College Democrats

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By William Ng | Counterpoint | June 26th, 2013 | SHOW COMMENT(1)

One Response

  1. Jordan says

    Will left a thoughtful argument and invited me to respond. I respectfully dissent with his (and the majority’s) opinion in Salinas v. Texas. So here I go:

    -Mr. Salinas voluntarily went to the police station and was never informed of his Miranda rights, as he was not detained nor arrested. He answered questions about the case but fell silent when asked whether ballistics testing would match his shotgun to the casings found at the seen. When on trial for the murders, the prosecution remarked how an innocent person would not have done so. The opinion noted that the prosecution used this failure as evidence of guilt.

    I will argue that this bit of evidence should be stricken from the record and Mr. Salinas remanded for retrial. The crux of this case is not so much Salinas’ body language as his refusal to answer the question.

    -The Fifth Amendment as cited in Will’s argument is copied here: “No person shall be…compelled in any criminal case to be a witness against himself”. In essence, no suspect shall be placed in a situation where (s)he could incriminate themselves of a crime.

    -The situation here was a clear opportunity for self-incrimination. An affirmative answer would have led to his arrest. This places Mr. Salinas in an unfavorable scenario. If he answers the question, “he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances- even if he is innocent”. If he remains silent, the prosecution can use this to imply guilt. This circumstance is actually forbidden in Griffin v. California, in which the Court ruled that it was a violation of the defendant’s Fifth Amendment right’s for a prosecutor to comment to the jury on the defendant’s refusal to testify.

    -Mr. Salinas was given the opportunity to answer the question. He refused to do so. He refused to self-incriminate. It was within his Fifth Amendment rights.

    -The Bill of Rights is sacred to many Americans. These rights exist regardless of whether they are fully understood or declared. If I am pulled over for a routine traffic stop, and my car searched without warrant or probable cause, it is an illegal search and seizure, regardless of whether I tell the officer that or not. A half-competent lawyer would get it dismissed as my Fourth Amendment rights were violated. I don’t have to declare my Second Amendment rights at a gun store either.

    -In the same way, Fifth Amendment rights are persistent throughout the questioning process. They can be invoked at any time, used in the beginning, middle, or end of questioning, or all of the above. The subject may refuse to answer certain questions and answer others. The topic quickly shifted to an incriminating question. Salinas was well within his rights to refuse to answer this question. The prosecution cannot infer anything from his lack of testimony in this matter.

    -By remaining silent, Salinas tacitly invoked his Fifth Amendment rights. Salinas was without counsel (expensive) and thus may not have known the proper procedure to invoke his rights. In Quinn v. United States, the Court noted that no exact formula was required to invoke the Fifth, and Salinas’ silence should have been “sufficient to put the [government] on notice of an apparent claim of the privilege”. Thus, even if 95% of people know how to invoke the Fifth, the 5% should still be afforded the right to remain silent. Rights apply to everybody, not just the functionally literate. Thus, Salinas asserted his Fifth Amendment rights, though he did not understand exactly how to do so.

    -It is asserted that Salinas freely incriminated himself. This is not the case. Refusing to answer cannot be construed as an answer in the affirmative or negative. Only through responding to the question could Salinas have self-incriminated. According to Quinn, the prosecutor may not use this evidence as indication of guilt.

    -Salinas did not answer this question, as was within his right to do so. Thus, he did nothing to incriminate himself, and as such, the prosecution’s theory should be thrown out. The defendant need not make an obvious attempt to evoke the Fifth. The prosecution could have asked Mr. Salinas the same question on the stand and let the jury decide for themselves. Body language exhibited as a reaction to a question may be admissible, but is much more ambiguous and difficult to make a case out of. Being presented with a gotcha question of serious magnitude can evoke strange reactions out of anyone. But it shouldn’t be enough to convict. Neither should a defendant’s refusal to answer a question. Your right to avoid self-incrimination is a cherished right and has been backed up by case law that protects this valuable privilege. The Bill of Rights protects our civil liberties and democratic society and is the foundation upon which our country was built.


    The Supreme Court erred in its judgment. Assert your Fifth Amendment rights, and recognize that you have no requirement to speak with police without counsel present. You have the right to remain silent, and anything can and will be used against you in a court of law. But when in doubt, inform the officer that you are invoking your Fifth Amendment rights. He’ll understand, and you’ll be safe.