The Supreme Court has the Fifth Amendment in its crosshairs.

Supreme Court Targets Fifth Amendment

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18th Jun 2013

fifth in crosshairsSalinas v. Texas


The United States Supreme Court, in a 5-4 decision, held that the right to remain silent is not absolute.  JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that Salinas’ Fifth Amendment claim failed because he did not expressly invoke the Fifth Amendment privilege in response to the officer’s question.

“To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it.”

The Salinas decision radically changes the concept that the right against self incrimination is absolute.  From here forward, the prosecution will be free to comment on a defendant’s refusal to answer questions unless one of several situations exist:

* The defendant is in custody (or “not free to leave”) in which case the Miranda admonishment must be given and a defendant may refuse to waive his right to remain silent; or

* The defendant specifically states that he or she is asserting his or her Fifth Amendment right against self-incrimination.

The Salinas decision makes a distinction between merely remaining silent and invoking a privilege to remain silent under the Fifth Amendment.  Prosecutors may use evidence of silence as consciousness of guilt, whereas they are not permitted to comment on a defendant’s assertion of a legal privilege or right.

This decision is likely to shake up the defense bar because, in the past, the assertion of a privilege by explicity claiming it or merely by refusing to answer has been treated in the same way.  Post Salinas, it becomes the defendant’s responsibility to identify the privilege or right on which they are relying.  This flies in the face of long-standing principles and is likely to result in a great deal of litigation.