The Scholar: St. Mary's Law Review on Race and Social Justice


The history of an individual’s Constitutional right not to self-incriminate is complicated and counterintuitive. To eliminate this confusion, current Fifth Amendment jurisprudence should be altered. In Salinas v. Texas, the Supreme Court established silence alone is not enough to invoke an individual’s right to remain silent. Certain individuals face a significant disadvantage by this interpretation due to potential inabilities to understand their rights and how to invoke them. Providing clear and concise warnings better serves the Fifth Amendment’s original purpose, enabling people to know how to invoke their rights. The Supreme Court historically has adopted a liberal interpretation of the right not to incriminate oneself. Historically, the Fifth Amendment acted as a means for an individual to determine if their statements were self-incriminating. Today, that decision is left to the government. Throughout numerous caselaw decisions, the Supreme Court never felt pressured to answer the question of how one might need to invoke their Fifth Amendment rights. Miranda v. Arizona ensured the prosecution held the burden of showing an individual’s Fifth Amendment rights had been protected. Under the Salinas v. Texas plurality, the burden has substantially shifted to the individual. This decision stated anyone seeking to invoke their Fifth Amendment right must expressly claim it. Invocation of the right must be express, but forfeiture of the right need not be knowingly done. Justice Breyer’s dissent in Salinas explains circumstances dictate the use of the Fifth Amendment, not express statements. The new requirements for invoking one’s rights places a huge burden on individuals who have little to no knowledge of said requirements. Accordingly, suspects need warning of potential penalties for their silence.

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St. Mary's University School of Law



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