SALINAS v. TEXAS: "TO INVOKE THE 5TH, TAKE THE 5TH" --- By Charles Ware

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This is a SCOTUS update by Author and Attorney Charles Jerome Ware.

GENOVEVO SALINAS, Petitioner v. TEXAS, 570 U.S.___(2013), Supreme Court of the United States (SCOTUS) On Writ of Certiorari to the Court of Criminal Appeals of Texas, No. 12-246, June 17, 2013:

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 ballistics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”
  

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “ ‘must claim it.’ ” Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S. 424, 427 (1943) ). Although “no ritualistic formula is necessary in order to invoke the privilege,” 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 petitioner’s Fifth Amendment claim is affirmed.

 

"To invoke 5th, take the 5th" --- Attorney and Author Charles Jerome Ware.

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer's question.  Pp. 3-12.

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.

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