Fifth Amendment

Supreme Court Rules Fifth Amendment Has to Actually Be Invoked

Better brush up on those constitutional protections if you want to use them


She looks guilty of something
Credit: CRASH:candy / / CC BY-NC

In a 5-4 decision the Supreme Court ruled today that a potential defendant's silence can be used against him if he is being interviewed by police but is not arrested (and read his Miranda rights) and has not verbally invoked the protection of the Fifth Amendment.

Tim Lynch at the Cato Institute explains that the Salinas v. Texas case was intended to be about whether prosecutors during a trial could cast aspersions on a defendant's silence during questioning that took place prior to arrest — prior to the defendent being told he had the right to remain silent. Instead, the Supreme Court determined that they wouldn't need to rule on the matter because the defendant had never invoked the Fifth Amendment's protection. This decision means that it's the responsibility of the individual to know about the protections offered by the Fifth Amendment even prior to arrest and to actually verbally invoke it:

The Court said Salinas simply remained silent and did not "formally" invoke any constitutional right, so prosecutors could offer commentary to the jury. What's most disturbing about the ruling is its discussion of "burdens." The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable–persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights.

Justice Stephen Breyer's dissent notes that it should have been fairly clear that the defendant was invoking his Fifth Amendment right not to incriminate himself even if he didn't use the words "Fifth Amendment":

I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas' home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.

The irony here is that the ruling is yet another reason to actually never cooperate with the authorities, ever, and add an invocation of the Fifth Amendment anytime you are put in a position to speak to one.

The ruling fell along ideological lines, with swing Justice Anthony Kennedy falling in with the more conservative members. Read the full ruling here (pdf).

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  1. Failure to formally invoke a right is a waiver of that right when you’re clearly exercising that right? I’m sure there’s more to this than that, but it sounds a bit troubling.

    1. Yeah, this is one of the more government-deferential rulings in a long time. If you don’t speak out loud your right to not incriminate yourself, you’re potentially incriminating yourself? That’s unbelievably fucked.

      1. I’m sorry, did you invoke your speech rights before saying that? If not, I’m reporting you to the IRS.

        1. I noticed that you failed to invoke your 3rd Amendment rights when you closed on your house. I’ll be over with the troops later.

          And make sure to have some better cereal in the house this time.

          1. Dammit, fell for it again!

            1. You’re the worst lawyer ever. I may have to toss you off the space-elevator case. Unless you’re a better space-lawyer than you are a not-being-oppressed-lawyer.

              1. I once contemplated being a constitutional lawyer. Then I decided the Constitution was a dying industry.

                1. Then I decided the Constitution was a dying industry.

                  Certainly obscure. Nobody’s read the thing since Lincoln levied war on the States. (Article 3, section 3)

    2. You lawyery types must have some extra brain lobe that handles these types of mental gymnastics that I am unable to comprehend.

      1. It’s got an internal logic of its own, which has little correlation to reality. And it can be changed very easily.

      2. Actually part of passing the Bar involves having the part of your brain removed that detects and objects to logical paradoxes.

        S’why so many legislators started out as lawyers.

        1. So that explains ProL’s lobotomy scars!

          1. Otto: Lobotomy? Isn’t that for loonies?

            Parnell: Not at all. Friend of mine had one. Designer of the neutron bomb. You ever hear of the neutron bomb? Destroys people – leaves buildings standing. Fits in a suitcase. It’s so small, no one knows it’s there until – BLAMMO. Eyes melt, skin explodes, everybody dead. So immoral, working on the thing can drive you mad. That’s what happened to this friend of mine. So he had a lobotomy. Now he’s well again.

            1. Let’s do crimes. Let’s get sushi and not pay.

          2. So that explains ProL’s lobotomy scars!

            You mean the ones on either side of his buttocks?

        2. It’s really quite easy. Start with the conclusion you want. Reason back from there. It’s 80% of the law.

          1. But that still doesn’t work. If they did that you would run into a point where you can’t reason back to reality. There’s some additional magic step.

            1. No, there isn’t. See, reality is what the law says it is. For instance, ObamaCare is clearly illegal. No, it isn’t, it’s a tax.

              1. I see. So the extra step is to be insane and ignore reality.

                1. Yes, reality is too inconvenient.

        3. That’s not true, in some states they do that when you get sworn in.

        4. What do you call a lawyer with an IQ of 100?


          What do you call a lawyer with an IQ of 50?


          1. What do you call a community organizer with an IQ of 25? Mr. President

    3. Gee, that reminds me of something ….

      Oh, yes.

    4. The 5th amendment privilege and protection is that one may not be compelled to testify against themselves. That is what the SCOTUS upheld. IOWs, If someone simply agrees to have a voluntary discussion with police and includes various non-answers, none of the reponses were ever compelled and can be used in court; they were all given voluntarily-including the non-answers.

    5. Unfortunately, it doesn’t work the other way around. You still can be charged with a crime even if you didn’t know that what you were doing was illegal.

  2. The following is an exercise of my First Amendment right to free speech: It seems pretty odd to me that you have to invoke a right that should be assumed to apply.

    1. “Stop or I’ll second ammendment!”

      1. I am hereby and evermore explicitly invoking my Ninth and Tenth Amendment rights.

    2. So much for CC, eh?

      1. I’ll assume you mean Concealed Carry, and if so, not at all. Simply make a phone call, it doesn’t matter where or to whom, and say “I am exercising my 2nd amendment rights.”

        1. Just shout it out when you leave the house.

          1. Well, it is CONCEALED, so whispering it is probably okay, preferably with a hand over your mouth in case any lip readers are watching. Otherwise you’re brandishing your rights.

            1. preferably with a hand over your mouth in case any lip readers are watching

              What do you mean “in case”? Didn’t you read the Patriot Act yet?

              1. I invoke my rights against self-incrimination.

        2. Nice.

          “I informed you about that *years* ago!”

    3. Alright, alright now, none y’all ever said nothing about invoking your 13th Amendment rights, so I consider y’all my slaves and there are plenty of monocles to be made. Get to work.

      Except for Epi and Fist, who will fight to the death for my amusement.

      1. The games have always strengthened us. Death becomes a familiar pattern. We don’t fear it as you do.

      2. Along those lines – does a black person have to say “I’m invoking my Thirteenth Amendment Rights!” when they wake up each morning? Including Clarence Thomas?

        1. Does Obama do it on Mon, Wed and Fri or Tues, Thurs and Sat (with Sunday set aside for his Indonesian heritage,of course)?

  3. Thank God we allow our teachers in schools to remind us of our Fifth Amendment, er, wait, never mind.

  4. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    I can’t find the part that says you have to invoke it, a little help?

    1. Was Salinas “compelled”?

      1. Looks like we have the new Tulpa. Authority won’t suck its own dick.

        1. Why don’t you and NutraSweet go lather yourselves up with the leftover drippings from your mother’s last used bedsheet.

          1. You didn’t invoke your 1st Amendment right to say that…

    2. Salinas wasn’t being held. He volunteered to answer questions and some of the volunteered answers were non-answers. His answers were used to later indict him.

      Note that the 5th Amendment provides a privilege not to be compelled to testify against oneself, it does not prevent police from using volunteered non-answers.

      1. Ugh. Really? Read some SCOTUS decisions. The Court has held that interactions with police are coercive by their nature.

  5. “Libertarian” Thomas shits the bed again.

    See, the NSA stuff isn’t a scandal or even illegal, because not every single person in the country invoked their 4th Amendment right to not be searched without a warrant.

    When you buy a gun, you have to scream “I’m invoking the 2nd Amendment!” over and over again through the entire process.

    1. Gonna be tough on church services, too.

    2. Also, the note the “v. Texas” in the case name, despite people constantly telling us how Texas is practically libertopia.

      1. They love them some “law and order” down in Texas. When a crime is committed revenge is more important than justice.

        1. People keep trying, but I still have trouble with it.
          What exactly is the difference between justice and revenge?
          Other than the Right People approve of it, of course.

          1. What exactly is the difference between justice and revenge?

            The answer:

            (the specific URL is SFW, but the site is extremely NSFW, so don’t click it until you get home)

          2. If you just let people take revenge when they were wronged, we wouldn’t need government to secure justice for us, so government would lose one if its flimsy excuses for robbing us all the time.

        2. Revenge IS justice.

    3. Fuck Clarence Thomas. This guy has never been a friend to liberty.

  6. I wonder if there are any people who are not aware of their Miranda rights already, due to Movies and TV? Also, cannot this be retroactively applied?

    “Yes, your honor, I didn’t speak because I was previously aware of my Miranda rights to remain silence and not answer questions.”

    1. I also invoke my 29th amendment right to use poor grammar when posting comments on the Internets.

      1. I hereby refuse to answer on the grounds that my organs will be ground into a patty.

        1. Ah, the 67th Amendment.

          1. With you involved, Epi, I think it would be Amendment 69.

            1. “The charge is bank robbery. Now, my caddie’s chauffeur informs me that a bank is a place where people put money that isn’t properly invested. Therefore, robbing a bank is tantamount to that most heinous of crimes, theft of money.”

              1. Counselor, what evidence do you offer to support this new plea of insanity?

                1. Well, for one, they done hired me to represent them.

                  1. Insanity plea rejected. If they had hired Pro Lib, case closed.

                  2. But I’m not a robot like you! I don’t like having disks crammed into me, unless they’re Oreos, and only in the mouth.

              2. Oh, I get it; it’s a thing.

                funny stuff.

    2. Yes your honor, I was informed of my Miranda rights by Cagney & Lacey.

      1. I have a feeling that they would prefer you use “Law and Order”.

        1. Dumm-dummm

        2. Keep talking and I’ll change it to Night Court.

          1. $50 and time served.

  7. never cooperate with the authorities, ever

    Careful, Scott. Getting kind of close to the T-word.

  8. The irony here is that the ruling is yet another reason to actually never cooperate with the authorities, ever, and add an invocation of the Fifth Amendment anytime you are put in a position to speak to one.

    THIS. Absolutely this.

    If you are ever called in to speak to the authorities, show up, ask if you are under arrest. If not, leave. If they won’t let you leave, invoke your 5th amendment right and tell them you won’t say another word until you have spoken to your lawyer.

    I was interrogated for a crime that I had nothing to do with. I was asked in to answer questions “as a witness” even though I hadn’t witnessed anything. It became very apparent that I was a suspect. The detective was already convinced of my guilt and kept trying to trap me by changing up the phrasing of the questions. Upon realizing what was going on, I asked if I was being charged with a crime. The word “no” was barely out of his mouth and I was heading for the door. He threatened that if I didn’t cooperate and answer his questions, he’d make sure I rotted in jail. Claimed he had my fingerprints, witnesses, etc to try to intimidate me.

    PROTIP: Cops are allowed to lie to you, and they certainly will.

    1. It’s bad enough when they bring you in on a crime you did have something to do with.

      1. Even then, you never ever ever ever say anything to the cops without a lawyer.

        An ex of mine loved those “First 48” type shows where they follow real investigations. I can’t tell you how many times I’ve shouted at the screen for the accused to just shut the fuck up. So many of those cases, the cops have nothing except hearsay or circumstantial evidence. They’d come in and tell the guy we got witnesses, we found the weapon, the guy survived and fingered you, your buddy ratted on you, etc etc etc. All lies, but once they get that confession, you’re screwed.

        1. The First 48 is a great show for a lesson in “know thy enemy”. Cops being the enemy and their interrogation techniques being the lesson.

          1. Indeed it is. The example I gave isn’t the first/only time I’ve been across the table from cops asking about a crime I had nothing to do with. 3 times I’ve been interrogated for being in the wrong place at the wrong time. 2 of those times, no actual crime had even been committed (larceny for stuff that turned out to not be missing, kidnapping for a girl that wasn’t actually kidnapped). All 3 times, knowing my rights and knowing that cops are allowed to make up whatever the hell they want has saved me a lot of trouble.

            1. I just tell ’em it ain’t kidnappin’ if the girl doesn’t invoke her eleventeenth amendment right to not be kidnapped.

              Fuckin’ technicalities, love ’em!

    2. Don’t forget to mention the sixth ammendment too. Mentioning the fifth explains being silent, but being silent AND asking for the lawyer while only invoking the fifth is might suspicious.

      1. “My name is (insert name here). I am invoking all relevant Constitutional rights and will not answer questions without the advice of legal counsel.”

        Don’t know how well it will work as IANAL.

        1. That would probably work better than my standard line “I don’t know nothin ’bout nothin. But word on tha street is about a pimp named Silky”

  9. I hate the Miranda warning. “Anything I say CAN AND WILL be used against me in a court of law?” Anything? Fuck you! Get some evidence, shitbag. Makes me want to start acting crazy right off the bat just in case I need an insanity defense.

    1. Don’t act crazy? Simply make statements like you’re asking a question? That way you’re not actually *saying* anything?

      1. Just don’t start repeating everything they say back at them, they’ll say “I totally did it” and then start recording.

    2. Stuff you say is evidence.

      And so apparently is stuff you don’t say before you’re Mirandized.

  10. The correct answer to every single question is “I want a lawyer”.

    1. If they haven’t read you your Miranda rights and you ask for a lawyer wihtout explicitly invoking your Sixth Ammendment rights, that can be used as evidence of your guilt at trial.

  11. Can’t I get an app that just automatically invokes my rights evey 10 minutes?
    Or maybe a tshirt? Or a tattoo?
    “I plead the Fif”

  12. Speaking of cops n’ shit, there was a dude (presumably an off-duty cop) in the restaurant I was eating in with a t-shirt that said “Cops never think it’s as funny as you do”.

    What a fucking doucheface motherfucker.

    1. “Smile when you wear that.”

    2. If I were less attached to my freedom and status as a non-tazee, I’d have walked up and asked if his t-shirt meant that all cops were humorless douchnozzels.

  13. And yet, despite the fact that I’ve never asserted my Thirteenth Amendment rights, nobody’s ever tried to buy me as a slave.

    1. That’s because of that sweet M1A you carry everywhere you go.

  14. Wait, the reason for the Miranda warning is to ensure that someone ignorant of their rights knows they have rights. So if someone doesn’t speak before they are advised of their rights, it CAN be used against them? That’s insane.

    And where does it end? Do we need to invoke our fourth amendment rights? If we don’t, do cops no longer need a warrant to search our homes? Could police shut down a Hindu temple so long as none of the priests or worshipers actually say the words “first amendment” while the temple is padlocked?

    Can a prosecutor deny someone a trial by jury or a lawyer on a felony charge simply because the accused never specifically requested one?

    If a cop breaks someone’s jaw while making an arrest, does their ensuing silence incriminate them? Madness!

    1. The NSA didn’t need one. Maybe we need to add a header to all emails: I AM HEREBY INVOKING MY 4TH AMENDMENT RIGHTS TO NOT HAVE THIS EMAIL SEARCHED.

  15. Man, fast track to making a beligerent cop feel dumb.

    Cop: Step over here, sir, I’d like to ask you some questions.

    Me: Based upon the Supreme Court’s majority opinion in Salinas v Texas, I’m invoking my fifth amendment rights.

    Cop: Sabrina V. who?

  16. Con law means nothing to the Government. The entire concept of government is ridiculous anyway. The idea that a piece of paper will ever protect you from the aggression of other individuals is a stupid notion.

    But the problem with relying on pieces of paper is really just symptomatic of the error of our ways – some people, most people , believe in irrational and nonsensical things. Its nonsensical to have beliefs about pieces of paper – let alone to have those beliefs in the delusion that they will be protection from something even more irrational – the Government. The problem here isn’t the sheer silliness of the piece of paper – its that people scribbled on that paper so they could try to control their other inventive fiction – Government. Let’s abolish Government or destroy it or whatever is the most expedient method. Then people will not have to worry about pieces of paper and trying to use them as protection from the aggression of others, and get back to using actual weapons as protections.

    1. The point of putting it down on paper was so that future rulers couldn’t arbitrarily and capriciously make up their own suite of powers. Unfortunately our founding forefathers forgot to account for the possibility that future rulers would completely ignore the writings on the velum and grant themselves whatever powers they deemed necessary.

      This is yet another in a long line of completely indefensible decisions by the court. At least the New Deal decisions were made under duress. The more recent abominations are apparently wholly voluntary.

      1. No. Our Founders definitely understood that future rulers could ignore the writings. They tasked the people with defending their Constitution. We have failed.

  17. If you have to “invoke them”, then they are not rights. Due to this ruling you have to tell the government you have the right to life or, according to the “Court”, they can just arbitrarily murder you.

  18. The guy VOLUNTARILY went in for questioning, answered a few questions, and then shut up when they asked him something he didn’t want to answer. Where’s he being compelled to testify against himself, it’s not like he’s in custody. Tony and Clarence actually got it right; if you’re being questioned by choice, even claiming the 5A protections shouldn’t make your silence inadmissable.

    1. There is no such thing as a voluntary interaction with police. The power differential makes it necessarily coercive. SCOTUS has previously recognized this.

  19. Agreed, and this is from someone who hates our otherwise out-of-control police state. The guy is basically pleading 5th after the fact. Also cops are a lot of things, but they can at least argue they aren’t psychic. Is the guy suddenly quiet because he’s on the spot or is he all of the sudden pleading the 5th?

    BTW, never speaking to cops ever should be just as much a no-brainer as knowing your rights. They don’t want justice, they want results. How else do you justify $100K+ pensions, chief’s knees, and all the rest?

  20. The real crime here is that your “rights” are never taught to you. It is criminal that k-12 does not, beyond some meaningless brief mention, actually teach this stuff.

  21. Or if they do, they do it in a way that upholds the “living document” idea. Case in point: my high school govt class in 1997 had the constitution in the back if the book with an interpretation of the amendments on “plain English” (you know because it was originally written in Latin and not plain English already.) I was surprised that according to the publisher, the second amendment definitely just means that the States can have militias. Didn’t even mention there was a controversy, just flat out didn’t acknowledge the idea thr it was about the public owning guns.

    1. This is why you don’t give governments the power to educate…

      1. This is why you don’tshouldn’t give governments the power to educate…

  22. I hereby invoke my First amendment right to say that this is one of the most terrible Supreme Court decisions in a long time. Then again, there have been a lot of terrible decisions lately. I consider myself on the conservative side of libertarian but I am not a big fan of the jurisprudence of this court as currently constituted.

  23. I guess none of the five assenters saw the irony in requiring a person to speak up in order to invoke their right to remain silent.

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  25. Once again, that pack of goddamned shysters in black dresses have demonstrated that when the chips are down, they have no interest at all in upholding our civil liberties.


  26. my best friend’s aunt makes $60 hourly on the laptop. She has been out of a job for nine months but last month her check was $15914 just working on the laptop for a few hours. Read more on this site

  27. You don’t need to invoke a right it’s yours from birth, what is wrong with these people?

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