Jeffrey A. Hines

On Wednesday, April 17, 2013, the United States Supreme Court heard oral arguments in the case of Genovevo Salinas v. Texas, an appeal from Harris County, Texas, for a 1992 murder conviction. During police questioning, and before he was arrested and read his Miranda warnings, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon. Prosecutors used his silence on that question to convict him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment right to remain silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected from use by prosecutors by the Constitution.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest that they have a right to remain silent without it being used in court.

Prosecutors argued that since Salinas was answering some questions–therefore, not invoking his right to silence–and since he wasn’t under arrest and wasn’t compelled to speak, his silence on the incriminating question doesn’t get constitutional protection.

“We’re merely saying that in this particular situation the defendant needs to tell something to the police in order to reveal that he is relying on a constitutional right,” said Assistant District Attorney Alan K. Curry of Houston.

Jeffrey L. Fisher, Salinas’ lawyer, called a prosecutor’s desire to tell a jury about a person’s silence “a trap for the unwary,” given the popularity of the phrase “you have the right to remain silent.”

That also worried Justice Ruth Bader Ginsburg. “Someone being interrogated who is savvy will say, ‘I plead the Fifth.’ And somebody who is not that smart is just silent,” she said. “To make a difference between those two people on whether comment can be made on the failure to respond is troublesome.”

Justice Sonia Sotomayor stated, “It’s a little scary to me that an unanswered question is evidence of guilt.”

The opinion of the Court is expected to be handed down later this year.