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June 21, 2013

U.S. Supreme Court Holds That the Fifth Amendment Does Not Bar Using a Suspect's Silence as Evidence of Guilt

Arnold & Porter Advisory

On June 17, 2013, the U.S. Supreme Court issued a fragmented 5-4 decision in Salinas v. Texas. In Salinas, five Justices agreed, on narrow grounds, that prosecutors may use the pre-arrest silence of a cooperating suspect as evidence of his guilt without implicating the Fifth Amendment privilege against self-incrimination. The plurality opinion, written by Justice Alito and joined only by Chief Justice Roberts and Justice Kennedy, concluded that an individual who voluntarily cooperates with law enforcement officials must "expressly invoke the privilege against self-incrimination in response to [an] officer's question" "in order to benefit from it." In other words, the plurality concluded that in a noncustodial interview, if an individual does not assert his or her Fifth Amendment rights when refusing to answer an investigator's question, the government is free to draw an adverse inference from that silence at trial.

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Kirk Ogrosky
Kirk Ogrosky
Partner
Washington, DC
Murad Hussain
Murad Hussain
Partner
Washington, DC
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