133 S. Ct. 2174 (2013)
Two brothers were shot and killed in their home. Police recovered shotgun shell casings at the home and their investigation led to defendant, who agreed to hand over his shotgun for ballistics testing and to go to the police station for questioning. The interview lasted about one hour, and both parties agree it was noncustodial and Miranda warnings were not given. Defendant answered the officer’s questions for most of the interview, but went silent and tightened up when asked if the shotgun would match the shells recovered at the murder scene. After a few moments of silence, the officer asked additional questions, which defendant answered. Defendant did not testify at his trial and, over his objection, the prosecution used his silence in response to the officer’s question as evidence of his guilt.
Defendant was convicted of murder and both the Texas State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment.
Did the prosecution’s use of defendant’s silence in response to police questioning violate his Fifth Amendment rights, when defendant failed to invoke his privilege against self-incrimination, was not in custody, and had not received Miranda warnings?
Holding / Rule
(Plurality decision) No. A witness generally must expressly invoke the Fifth Amendment privilege against self-incrimination in order to benefit from it.
Neither of the two recognized exceptions to the invocation requirement apply here. One is that a defendant is not required to take the stand and assert the privilege against self-incrimination at his own trial. The other is that a witness’ failure to invoke the privilege may be excused where government coercion made his forfeiture of the privilege involuntary. It is undisputed that defendant’s police interview was voluntary—he admitted he was free to leave at any time and nothing prevented him from saying he was refusing to answer the officer’s question on Fifth Amendment grounds.
The Court refused to adopt a third exception to the express invocation requirement for cases in which a witness remains silent and thereby declines to give an answer that officers suspect would be incriminating. Such a rule “would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt.” The Fifth Amendment only protects the right to remain silent if the silence is for the purpose of avoiding self-incrimination. Without an express invocation, the reason for a witness’ silence is ambiguous.
Thomas (joined by Scalia) concurred, arguing that defendant’s claim should fail even if he invoked the privilege because the prosecutor’s comments regarding his pre-custodial silence did not compel him to give self-incriminating testimony.
Breyer (joined by Ginsburg, Sotomayor, and Kagan) dissented, stating that “no ritualistic formula is necessary to invoke the privilege” and that the circumstances of the case must be considered. The dissent argued that defendant did not need to expressly invoke the privilege because the questioning was in the context of a criminal investigation and the police made defendant, who was not represented by counsel, aware he was a suspect. Moreover, the question at issue was clearly designed to determine whether defendant was guilty.