A police officer is asking you questions about a crime, and because the questions are off the record you answer willingly. Then, the questions take an accusatory tone and you stop answering. The Fifth Amendment, which allows a person not to present criminal evidence against themselves, surely protects you in this moment right?
Amid the slew of decision being churned out by the Supreme Court right now was a ruling in last week’s Salinas v. Texas. Genovevo Salinas had not been arrested, so he felt comfortable answering the police’s questions voluntarily. However, once a question made him uncomfortable he stopped responding. The police used Salinas’ silence in court to signify a confession of guilt.
Salinas then brought suit against the state of Texas based on the fact that a person could not be incriminated for silence, nor could the use of the Fifth Amendment be used as evidence against a person. The question posed in the petition to the Supreme Court reads:
Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.
The Supreme Court ruled against Salinas in a 5-4 vote because they claimed that Salinas did not make clear during questioning that he was utilizing the Fifth Amendment. In the words of scotusblog:
The prosecution’s use of his silence in response to another question as evidence of his guilt 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.
Along with the other Constitutional amendments being chipped away at lately; the First, the Second, the Fourth, the Sixth, the Eighth and the Fifteenth, we can officially add the Fifth Amendment to that list.
If you find yourself in a situation where you want to use the Fifth Amendment, make sure you express that as plainly as you can, otherwise your unwillingness to answer questions could get you locked up for a long, long time.
You can read the full petition to the Supreme Court here: