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(Slip Opinion) OCTOBER TERM, 2012 1
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
SALINAS v. TEXAS
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 12â€“246. Argued April 17, 2013â€”Decided June 17, 2013
Petitioner, without being placed in custody or receiving Miranda warn- ings, voluntarily answered some of a police officerâ€™s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitionerâ€™s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the pros- ecutionâ€™s use of his silence in its case in chief violated the Fifth Amendment.
Held: The judgment is affirmed.
369 S. W. 3d 176, affirmed.
JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY,
concluded that petitionerâ€™s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officerâ€™s question. Pp. 3âˆ’12.
(a) To prevent the privilege against self-incrimination from shield- ing information not properly within its scope, a witness who â€œ â€˜desires the protection of the privilege . . . must claim itâ€™ â€ at the time he relies on it. Minnesota v. Murphy, 465 U. S. 420, 427. This Court has rec- ognized two exceptions to that requirement. First, a criminal de- fendant need not take the stand and assert the privilege at his own trial. Griffin v. California, 380 U. S. 609, 613â€“615. Petitionerâ€™s si- lence falls outside this exception because he had no comparable un- qualified right not to speak during his police interview. Second, a witnessâ€™ failure to invoke the privilege against self-incrimination must be excused where governmental coercion makes his forfeiture of the privilege involuntary. See, e.g., Miranda v. Arizona, 384 U. S. 436, 467âˆ’468, and n. 37. Petitioner cannot benefit from this principle
SALINAS v. TEXAS Syllabus
because it is undisputed that he agreed to accompany the officers to the station and was free to leave at any time. Pp. 3âˆ’6.
(b) Petitioner seeks a third exception to the express invocation re- quirement for cases where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating, but this Courtâ€™s cases all but foreclose that argument. A defendant normally does not invoke the privilege by remaining silent. See Rob- erts v. United States, 445 U. S. 552, 560. And the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. See Mur- phy, supra, at 427âˆ’428. For the same reasons that neither a witnessâ€™ silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, they do not do so together. The proposed exception also would be difficult to reconcile with Berghuis v. Thompkins, 560 U. S. 370, where this Court held in the closely related context of post-Miranda silence that a defendant failed to invoke his right to cut off police questioning when he re- mained silent for 2 hours and 45 minutes. Id., at ___.
Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such si- lence is â€œinsolubly ambiguous.â€ See Doyle v. Ohio, 426 U. S. 610, 617. To be sure, petitioner might have declined to answer the officerâ€™s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amend- ment. Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his â€œright to remain si- lent.â€ But the Fifth Amendment guarantees that no one may be â€œcompelled in any criminal case to be a witness against himself,â€ not an unqualified â€œright to remain silent.â€ In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U. S., at 427â€“428. Pp. 6âˆ’10.
(c) Petitionerâ€™s argument that applying the express invocation re- quirement in this context will be unworkable is also unpersuasive. The Court has long required defendants to assert the privilege in or- der to subsequently benefit from it, and this rule has not proved diffi- cult to apply in practice. Pp. 10âˆ’12.
JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that peti- tionerâ€™s claim would fail even if he invoked the privilege because the prosecutorâ€™s comments regarding his precustodial silence did not compel him to give self-incriminating testimony. Griffin v. Califor-
Cite as: 570 U. S. ____ (2013) 3 Syllabus
nia, 380 U. S. 609, in which this Court held that the Fifth Amend- ment prohibits a prosecutor or judge from commenting on a defend- antâ€™s failure to testify, should not be extended to a defendantâ€™s silence during a precustodial interview because Griffin â€œlacks foundation in the Constitutionâ€™s text, history, or logic.â€ See Mitchell v. United States, 526 U. S. 314, 341 (THOMAS, J., dissenting). Pp. 1âˆ’2.
ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 570 U. S. ____ (2013) 1
Opinion of ALITO, J.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12â€“246 _________________
GENOVEVO SALINAS, PETITIONER v. TEXAS ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF TEXAS [June 17, 2013]
JUSTICE ALITO announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and JUSTICE KENNEDY join.
Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballis- tics test would show that the shell casings found at the crime scene would match petitionerâ€™s shotgun. Petitioner was subsequently charged with murder, and at trial pros- ecutors argued that his reaction to the officerâ€™s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guaran- tees that â€œ[n]o person . . . shall be compelled in any crimi- nal case to be a witness against himself.â€
Petitionerâ€™s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the officerâ€™s question. It has long been settled that the privilege â€œgenerally is not self- executingâ€ and that a witness who desires its protection â€œ â€˜must claim it.â€™ â€ Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S.
2 SALINAS v. TEXAS Opinion of ALITO, J.
424, 427 (1943)). Although â€œno ritualistic formula is nec- essary in order to invoke the privilege,â€ Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitionerâ€™s Fifth Amendment claim is affirmed.
On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.
Petitionerâ€™s interview with the police lasted approxi- mately one hour. All agree that the interview was noncusto- dial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Mi– randa v. Arizona, 384 U. S. 436 (1966). For most of the interview, petitioner answered the officerâ€™s questions. But when asked whether his shotgun â€œwould match the shells recovered at the scene of the murder,â€ App. 17, petitioner declined to answer. Instead, petitioner â€œ[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.â€ Id., at 18. After a few moments of silence, the officer asked addition- al questions, which petitioner answered. Ibid.
Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded
Cite as: 570 U. S. ____ (2013) 3
Opinion of ALITO, J.
that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge peti- tioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name.
Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the officerâ€™s question dur- ing the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sen- tence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutorsâ€™ use of his si- lence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argu- ment, reasoning that petitionerâ€™s prearrest, pre-Miranda silence was not â€œcompelledâ€ within the meaning of the Fifth Amendment. 368 S. W. 3d 550, 557â€“559 (2011). The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. 369 S. W. 3d 176 (2012).
We granted certiorari, 568 U. S. ___ (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendantâ€™s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United States v. Rivera, 944 F. 2d 1563, 1568 (CA11 1991), with United States v. Moore, 104 F. 3d 377, 386 (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.
The privilege against self-incrimination â€œis an exception to the general principle that the Government has the right
4 SALINAS v. TEXAS Opinion of ALITO, J.
to everyoneâ€™s testimony.â€ Garner v. United States, 424 U. S. 648, 658, n. 11 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who â€œâ€˜desires the protection of the privilege . . . must claim itâ€™ â€ at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commis- sioner of Immigration, 273 U. S. 103, 113 (1927).
That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kasti- gar v. United States, 406 U. S. 441, 448 (1972). The ex- press invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witnessâ€™ reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) (â€œA witness may not employ the privilege to avoid giving testimony that he simply would prefer not to giveâ€); Hutcheson v. United States, 369 U. S. 599, 610â€“ 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege â€œassures that the Government obtains all the information to which it is entitled.â€ Garner, supra, at 658, n. 11.
We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. Califor- nia, 380 U. S. 609, 613â€“615 (1965), that a criminal de- fendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a crim- inal defendant has an â€œabsolute right not to testify.â€ Turner v. United States, 396 U. S. 398, 433 (1970) (Black, J., dissenting); see United States v. Patane, 542 U. S. 630,
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Opinion of ALITO, J.
637 (2004) (plurality opinion). Since a defendantâ€™s reasons for remaining silent at trial are irrelevant to his constitu- tional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because pe- titioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception.
Second, we have held that a witnessâ€™ failure to invoke the privilege must be excused where governmental coer- cion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the â€œinherently compelling pressuresâ€ of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467â€“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 â€œunless [he] fails to claim [it] after being suitably warned.â€ Murphy, supra, at 429â€“430.
For similar reasons, we have held that threats to with- draw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. Garrity v. New Jersey, 385 U. S. 493, 497 (1967) (public employment). See also Lefkowitz v. Cunningham, 431 U. S. 801, 802â€“804 (1977) (public office); Lefkowitz v. Turley, 414 U. S. 70, 84â€“85 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., Leary v. United States, 395 U. S. 6, 28â€“29 (1969) (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U. S. 70, 77â€“79 (1965) (members of the Communist Party not required to complete registration form â€œwhere response to
6 SALINAS v. TEXAS Opinion of ALITO, J.
any of the formâ€™s questions . . . might involve [them] in the admission of a crucial element of a crimeâ€). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him â€œa â€˜free choice to admit, to deny, or to refuse to answer.â€™ â€ Garner, 424 U. S., at 656â€“657 (quoting Lisenba v. California, 314 U. S. 219, 241 (1941)).
Petitioner cannot benefit from that principle because it is undisputed that his interview with police was volun- tary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and â€œwas free to leave at any time during the interview.â€ Brief for Peti- tioner 2â€“3 (internal quotation marks omitted). That places petitionerâ€™s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from volun- tarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposi- tion that â€œ[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment.â€ Post, at 7â€“8 (opinion of BREYER, J.). The critical question is whether, under the â€œcircumstancesâ€ of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitionerâ€™s failure to assert the privilege was invol- untary, and it would have been a simple matter for him to say that he was not answering the officerâ€™s question on Fifth Amendment grounds. Because he failed to do so, the prosecutionâ€™s use of his noncustodial silence did not violate the Fifth Amendment.
Petitioner urges us to adopt a third exception to the in- vocation requirement for cases in which a witness stands mute and thereby declines to give an answer that of- ficials suspect would be incriminating. Our cases all but
Cite as: 570 U. S. ____ (2013) 7
Opinion of ALITO, J.
foreclose such an exception, which would needlessly bur- den the Governmentâ€™s interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitionerâ€™s invitation to craft a new exception to the â€œgeneral ruleâ€ that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U. S., at 429.
Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In Roberts v. United States, 445 U. S. 552, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that â€œif [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have deter- mined whether his claim was legitimate.â€ Id., at 560. See also United States v. Sullivan, 274 U. S. 259, 263â€“264 (1927); Vajtauer, 273 U. S., at 113.1 A witness does not expressly invoke the privilege by standing mute.
We have also repeatedly held that the express invoca- tion requirement applies even when an official has reason to suspect that the answer to his question would incrim- inate the witness. Thus, in Murphy we held that the defendantâ€™s self-incriminating answers to his probation of- ficer were properly admitted at trial because he failed to invoke the privilege. 465 U. S., at 427â€“428. In reaching that conclusion, we rejected the notion â€œthat a witness â€”â€”â€”â€”â€”â€”
1The dissent argues that in these cases â€œneither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment.â€ Post, at 5â€“6 (opinion of BREYER, J.). But none of our precedents sug- gests that governmental officials are obliged to guess at the meaning of a witnessâ€™ unexplained silence when implicit reliance on the Fifth Amendment seems probable. Roberts does not say as much, despite its holding that the defendant in that case was required to explain the Fifth Amendment basis for his failure to cooperate with an investiga- tion that led to his prosecution. 445 U. S., at 559.
8 SALINAS v. TEXAS Opinion of ALITO, J.
must â€˜put the Government on notice by formally availing himself of the privilegeâ€™ only when he alone â€˜is reasonably aware of the incriminating tendency of the questions.â€™â€ Id., at 428 (quoting Roberts, supra, at 562, n.* (Brennan, J., concurring)). See also United States v. Kordel, 397 U. S. 1, 7 (1970).2
Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, peti- tioner would have us hold that although neither a wit- nessâ€™ silence nor official suspicions are enough to excuse the express invocation requirement, the invocation require- ment does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we con- clude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on societyâ€™s interest in the admission of evidence that is probative of a criminal defendantâ€™s guilt.
Petitionerâ€™s proposed exception would also be very diffi- cult to reconcile with Berghuis v. Thompkins, 560 U. S. 370 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the
2 Our cases do not support the distinction the dissent draws between silence and the failure to invoke the privilege before making incriminat- ing statements. See post, at 7 (BREYER, J., dissenting). For example, Murphy, a case in which the witness made incriminating statements after failing to invoke the privilege, repeatedly relied on Roberts and Vajtauerâ€”two cases in which witnesses remained silent and did not make incriminating statements. 465 U. S., at 427, 429, 455â€“456, n. 20. Similarly, Kordel cited Vajtauer, among other cases, for the proposition that the defendantâ€™s â€œfailure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.â€ 397 U. S., at 10, and n. 18.
Cite as: 570 U. S. ____ (2013) 9
Opinion of ALITO, J.
privilege when he refused to respond to police questioning for 2 hours and 45 minutes. 560 U. S., at ___ (slip op., at 3, 8â€“10). If the extended custodial silence in that case did not invoke the privilege, then surely the momentary si- lence in this case did not do so either.
Petitioner and the dissent attempt to distinguish Berg– huis by observing that it did not concern the admissi- bility of the defendantâ€™s silence but instead involved the admissibility of his subsequent statements. Post, at 8â€“9 (opinion of BREYER, J.). But regardless of whether prose- cutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.3
In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reli- ance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 9â€“10 (BREYER, J., dissenting). But whatever the most probable explanation, such silence is â€œinsolubly ambiguous.â€ See Doyle, v. Ohio, 426 U. S. 610, 617 (1976). To be sure, someone might decline to answer a police officerâ€™s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amend- ment. Petitioner alone knew why he did not answer the officerâ€™s question, and it was therefore his â€œburden . . . to
3Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle v. Ohio, 426 U. S. 610, 617â€“618 (1976), but that rule does not apply where a suspect has not received the warningsâ€™ implicit promise that any silence will not be used against him, Jenkins v. Anderson, 447 U. S. 231,
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