Silence is NOT golden: Miranda, and when you need to expressly invoke your 5th Amendment rights

In an earlier post, A Meander through Miranda, we discussed the Miranda warning at length. Among other things, we stated that when a criminal suspect invokes their 5th Amendment right against compelled self-incrimination, they must do so  1) clearly and 2) unequivocally ( important buzz words). In June 2013, the SCOTUS decided Salinas v. Texas, which reinforced this concept.

The Miranda protection provides that a " ... witness need not expressly invoke the privilege where some form of official compulsion denies him a 'free choice to admit, deny, or refuse to answer.' "

However, when a suspect volunteers information, the element of official coercion/compulsion is removed, and the suspect must therefore expressly
invoke the privilege thereafter.

In Salinas, a criminal suspect in custody for murder first volunteered answers to some questions posed by police, but later remained silent on others. Specifically, an officer asked the suspect if a ballistics test would show that shell casings found at the crime scene would match the suspect’s shotgun, to which the suspect made no response. The state of Texas found him guilty of murder, using his failure to answer as evidence of his guilt.

The Court in Salinas, in a 5-4 decision, ruled that a criminal defendant does not invoke their 5th Amendment right against compelled self-incrimination by remaining silent, if they have already volunteered to speak with the police. In prior cases, the Court had also ruled that the privilege is not "self-executing."

The key to the ruling is that the suspect first volunteered answers to some questions before remaining silent on the shotgun shell question. When the suspect first volunteered information, it took him out of the scope of the Miranda protection. This is because it was undisputed that  his interview was voluntary. To place him back under the protection of Miranda, the suspect would have needed to voice his right to remain silent, and in response, the police would have had to terminate the interview.