Salinas v. Texas: The Fifth Amendment Self-Incrimination Burden

• Author: Matthew J. Thompson Jr.
• Position: Staff Member, Capital University Law Review 2013?2014. I would like to thank Professor Scott Anderson for his valuable insight and guidance throughout writing this article. I would also like to extend gratitude to my family, friends, and the 2013?2014 Capital University Law Review Executive Board for their encouragement through such an arduous...
• Pages: 19-58

SALINAS V. TEXAS: THE FIFTH AMENDMENT SELF-

INCRIMINATION BURDEN

MATTHEW J. THOMPSON JR.*

I. INTRODUCTION

The Fifth Amendment’s self-incrimination clause provides that “[n]o

person shall be . . . compelled in any criminal case to be a witness against

himself.”1 From an early age, children are familiar with the concept of the

Fifth Amendment.2 Even if not “schooled in the particulars” of the Fifth

Amendment legal doctrine, individuals still have beliefs about what is

fundamentally fair regarding the Fifth Amendment.3

Visualize the following scenario: Local police arrive at a suspect’s

home to talk about a theft that occurred in the suspect’s neighborhood.

The police ask the suspect to accompany them to the police station to

answer some questions, and the suspect, willing to help, agrees to

accompany the police officers to the station. After an hour of questioning,

the suspect notices that the officer begins to take a more aggressive,

accusatorial approach to the questioning. Finally the officer asks, “If we

were to search your home, we would find that stolen property, wouldn’t

we?” Unwilling to sound nervous answering such an accusatorial

question, the suspect remains silent for fear of possible incrimination.

After a few seconds of silence, the suspect answers a couple more

questions and the interview ends. A few days after the interview, the

police charge the suspect with the crime. At the suspect’s trial the

prosecutor uses the suspect’s interview silence as evidence of the suspect’s

guilt. The prosecutor explains to the jury that a suspect who is not guilty

would have explained his or her innocence in light of such accusations.

Copyright © 2015, Matthew J. Thompson Jr.

*Staff Member, Capital University Law Review 2013–2014. I would like to thank

Professor Scott Anderson for his valuable insight and guidance throughout writing this

article. I would also like to extend gratitude to my family, friends, and the 2013–2014

Capital University Law Review Executive Board for their encouragement through such an

arduous endeavor.

1 U.S. Const. amend. V.

2 See Salinas v. Texas, 133 S. Ct. 2174, 2182 (2013) (plurality opinion) (quoting

Michigan v. Tucker, 417 U.S. 433, 439 (1974)) (internal quotation marks omitted)

(“[V]irtually every schoolboy is familiar with the concept, if not the language of the Fifth

Amendment.”).

3 See id.

20 CAPITAL UNIVERSITY LAW REVIEW [43:19

After the jury reaches a guilty verdict, the suspect sits in disbelief that the

act of remaining silent could be used as evidence of guilt.

Despite the suspect’s disbelief, the Supreme Court held by a plurality

in the recent case Salinas v. Texas4 that a suspect’s pre-arrest, pre-

Miranda5 silence can be used as a substantive inference of guilt.6 This

note critically examines Salinas v. Texas and argues that its implications

unconstitutionally burden the policies underlying the Fifth Amendment.

This note further provides a more practical solution to the complex

problem of using a suspect’s silence as evidence of guilt. Part II begins

with the important Fifth Amendment history that led to Salinas v. Texas.7

Specifically, Part II.A of this note explains the Supreme Court’s Fifth

Amendment self-incrimination policy regarding interrogations.8 Part II.B

reviews and analyzes important Supreme Court cases regarding the use of

a suspect’s silence, including the Jenkins9 impermissible burden test.10

Part II.C explains the previous circuit court split on the use of pre-arrest,

pre-Miranda silence.11 Part III analyzes the Salinas v. Texas case and

argues that the plurality and dissenting opinions burden the policies behind

the Fifth Amendment.12 Finally, Part IV provides a workable and practical

bright-line solution to the complex problem of silence that does not burden

the policies underlying the Fifth Amendment.13

II. FIFTH AMENDMEN T SELF-INCRIMINATION BACKGROUND

A. Self-Incrimination Clause Policy and United States v. Bram

Supreme Court and Fifth Amendment critics both agree that, despite

the self-incrimination clause’s language being fundamental to our

constitution, “the law and the lawyers . . . have never made up their minds

4 133 S. Ct. 2174 (2013) (plurality opinion).

5 Id. at 2183–84. A pre-arrest, pre-Miranda setting refers to the period of time before a

suspect’s arrest and before a suspect has been read his or her Miranda rights. Id. at 2177–

78. 6 Id. at 2183.

7 See infra Part II.

8 See infra Part II.A.

9 Jenkins v. Anderson, 447 U.S. 231 (1980).

10 See infra Part II.B.

11 See infra Part II.C.

12 See infra Part III.

13 See infra Part IV.

2015] SALINAS V. TEXAS 21

just what it is supposed to do or just whom it is intended to protect.”14 For

instance, in Murphy v. Waterfront Commission of New York Harbor,15 the

Supreme Court explained that it would “not do . . . to assign one isolated

policy to the privilege” because the Court’s own treatment of the self-

incrimination clause utilizes a variety of policy considerations.16 Among

the self-incrimination policy considerations listed in Murphy, one policy

consideration in particular targeted governmental interrogation: “[A] fear

that self-incriminating statements will be elicited by inhumane treatment

and abuses.”17 While the Murphy Court acknowledged interrogation as a

distinct policy among others underlying the self-incrimination clause, the

Court did not explain the policy’s origin or how the Court originally dealt

with cases involving governmental interrogation.18

The Supreme Court’s initial Fifth Amendment decisions and

interpretations did not materialize right away. More than one hundred

years had passed since the Fifth Amendment was first included in the

Constitution before the Supreme Court started focusing on cases involving

the self-incrimination clause.19 For instance, in Bram v. United States,20

the Court decided its first self-incrimination clause case regarding

governmental interrogation.21 In Bram, a fellow sailor accused the

defendant of murdering another member of the ship’s crew, and the police

arrested the defendant when the ship docked.22 While in custody, a police

detective secluded the defendant in a private office, stripped the defendant

of his clothes, and accused him repeatedly of murdering his fellow crew

member.23 In response to the accusations, the defendant made statements

denying any guilt and those statements were then admitted against the

defendant as evidence of a confession.24

14 Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 56 n.5 (1964) (quoting

Harry Kalven Jr., Invoking the Fifth Amendment—Some Legal and Impractical

Considerations, 9 BULL. ATOMIC SCI. 181, 182 (1953)) (internal quotation marks omitted).

15 378 U.S. 52 (1964).

16 Id. at 56 n.5.

17 Id. at 55.

18 See id.

19 Kate E. Bloch, Fifth Amendment Compelled Statements: Modeling the Contours of

Their Protected Scope, 72 WASH. U. L.Q. 1603, 1609 (1994).

20 168 U.S. 532 (1897).

21 Id. at 565. See also Bloch, supra note 19, at 1612.

22 Bram, 168 U.S. at 536–37.

23 Id. at 539.

24 Id. at 539–41.