Attorney James K. Minick

Attorney James K. Minick

Under the 5th Amendment to the Constitution, an individual shall not be compelled in any criminal case to be a witness against himself. This means that when a person remains silent or chooses not to testify in his criminal trial, that refusal cannot be used again him in court. However, must you expressly state that you are invoking the 5th Amendment by choosing to remain silent?

Miranda Rights

When an individual is in custody or arrested, police officers are required to read them their Miranda rights. This is not only required, but also in order to preserve any statements made by the individual for use later in court. Through the giving of an effective Miranda warning, an individual is informed that they are allowed to remain silent and anything they say or do will be used against them in a court of law. Following this warning, an individual must acknowledge that they understand their rights.

Right to Silence

After a Miranda warning is given, prosecutors are not allowed to use the lack of response or silence against a criminal defendant in court. However, Miranda warnings are only required to be given to individuals who are officially in police custody. This custody is determined when a person is in a situation where a reasonable person would not believe that they are free to leave. So what happens to an individual who is talking to police but is not considered in custody?

Salinas v. Texas

In Salinas v. Texas (PDF), the Supreme Court considered the case of Genovevo Salinas. After a double homicide, Salinas willingly went to the police station to talk to the police in order to clear his name. Although Salinas was at the police station, he was not considered in custody since he willingly went and was not arrested or interrogated for the crime. As such, the police did not read him his Miranda rights. After some questioning, police asked him whether tests done on his shotgun would return a positive match for the gun used in the crime. Immediately after this question was asked, Salinas stopped talking, started fidgeting, and tensed up. Consequently, Salinas was later arrested for the double homicide. During Salinas’ trial for the double homicide, Salinas claimed his 5th Amendment right against self-incrimination. However, in their case, the prosecution referred to Salinas’ reaction to the questioning multiple times. However, after considering the facts and the legal issues, the Supreme Court controversially ruled that Salinas could not claim 5th Amendment protection regarding his actions since he did not expressly invoke his 5th Amendment rights. From this case, many critics have claimed that the protection given by the 5th Amendment has been effectively stripped away from U.S. citizens.


Although police officers are required to read individuals who are arrested their Miranda rights, individuals who are not arrested or considered in custody must be very careful in their interactions with police officers due to the ruling in Salinas. Based off of the legal reasoning extended in Salinas, in order to be able to use the protection that the 5th Amendment purports to extend, a person must explicitly state that they are invoking their right to silence.

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If you or someone you know have been charged with a crime, it is important to consult with an experienced criminal defense attorney that can help zealously defend your case. Contact Us at Minick Law, P.C. for a free consultation on your case.

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