"When You Don’t Have The Right To Remain Silent"
The ruling means that prosecutors were entitled to use Genovevo Salinas’ silence against him during a murder trial to argue that jurors should infer guilt from his silent reaction to a police question, even though Genovevo was not present at trial and couldn’t counter this assertion. Salinas had voluntarily answered several other police questions before falling silent on the question of whether shell casings found at the crime scene would match his gun.
While Justice Samuel Alito held for the court that Salinas would have had to explicitly “assert the privilege” by referring to his right to remain silent, the dissent found that defendants cannot be expected to utter particular code words, as the Supreme Court has long said there is “no ritualistic formula” necessary to invoke the privilege.
Justice Stephen Breyer explains in his dissent:
To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. 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 prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself”—very much what the Fifth Amendment forbids. And that is similarly so whether the questioned individual, as part of his decision to remain silent, invokes the Fifth Amendment explicitly or implicitly, through words, through deeds, or through reference to surrounding circumstances.
The majority dodged answering the question outright of whether anyone not yet in police custody has a right to remain silent, meaning those who have read the ruling are on notice that they should explicitly invoke their Fifth Amendment right, and those who haven’t talk to police voluntarily at their own peril.