salinas texas argued april decided june petitioner without placed custody receiving miranda warnings voluntarily answered police officer questions murder fell silent asked whether ballistics testing match shotgun shell casings found scene crime petitioner murder trial texas state objection prosecution used failure answer question evidence guilt convicted state appeals criminal appeals affirmed rejecting claim prosecution use silence case chief violated fifth amendment held judgment affirmed affirmed justice alito joined chief justice justice kennedy concluded petitioner fifth amendment claim fails expressly invoke privilege response officer question pp prevent privilege shielding information properly within scope witness protection privilege must claim time relies minnesota murphy recognized two exceptions requirement first criminal defendant need take stand assert privilege trial griffin california petitioner silence falls outside exception comparable unqualified right speak police interview second witness failure invoke privilege must excused governmental coercion makes forfeiture privilege involuntary see miranda arizona petitioner benefit principle undisputed agreed accompany officers station free leave time pp petitioner seeks third exception express invocation requirement cases witness chooses stand mute rather give answer officials suspect incriminating cases foreclose argument defendant normally invoke privilege remaining silent see roberts express invocation requirement applies even official reason suspect answer question incriminate witness see murphy supra reasons neither witness silence official suspicion sufficient relieve witness obligation expressly invoke privilege together proposed exception also difficult reconcile berghuis thompkins held closely related context silence defendant failed invoke right cut police questioning remained silent hours minutes petitioner claims reliance fifth amendment privilege likely explanation silence case like silence insolubly ambiguous see doyle ohio sure petitioner might declined answer officer question reliance constitutional privilege also might done trying think good lie embarrassed protecting someone else every possible explanation silence probative guilt neither every possible explanation protected fifth amendment petitioner also suggests unfair require suspect unschooled particulars legal doctrine anything remain silent order invoke right remain silent fifth amendment guarantees one may compelled criminal case witness unqualified right remain silent event settled forfeiture privilege need knowing murphy pp petitioner argument applying express invocation requirement context unworkable also unpersuasive long required defendants assert privilege order subsequently benefit rule proved difficult apply practice pp justice thomas joined justice scalia concluded petitioner claim fail even invoked privilege prosecutor comments regarding precustodial silence compel give testimony griffin california held fifth amendment prohibits prosecutor judge commenting defendant failure testify extended defendant silence precustodial interview griffin lacks foundation constitution text history logic see mitchell thomas dissenting pp alito announced judgment delivered opinion roberts kennedy joined thomas filed opinion concurring judgment scalia joined breyer filed dissenting opinion ginsburg sotomayor kagan joined opinion alito notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press genovevo salinas petitioner texas writ certiorari criminal appeals texas june justice alito announced judgment delivered opinion chief justice justice kennedy join without placed custody receiving miranda warnings petitioner voluntarily answered questions police officer investigating murder petitioner balked officer asked whether ballistics test show shell casings found crime scene match petitioner shotgun petitioner subsequently charged murder trial prosecutors argued reaction officer question suggested guilty petitioner claims argument violated fifth amendment guarantees person shall compelled criminal case witness petitioner fifth amendment claim fails expressly invoke privilege response officer question long settled privilege generally witness desires protection claim minnesota murphy quoting monia although ritualistic formula necessary order invoke privilege quinn witness simply standing mute petitioner required assert privilege order benefit judgment texas criminal appeals rejecting petitioner fifth amendment claim affirmed morning december two brothers shot killed houston home witnesses murders neighbor heard gunshots saw someone run house speed away car police recovered six shotgun shell casings scene investigation led police petitioner guest party victims hosted night killed police visited petitioner home saw dark blue car driveway agreed hand shotgun ballistics testing accompany police station questioning petitioner interview police lasted approximately one hour agree interview noncustodial parties litigated case assumption read miranda warnings see miranda arizona interview petitioner answered officer questions asked whether shotgun match shells recovered scene murder app petitioner declined answer instead petitioner ooked floor shuffled feet bit bottom lip cl nched hands lap began tighten moments silence officer asked additional questions petitioner answered ibid following interview police arrested petitioner outstanding traffic warrants prosecutors soon concluded insufficient evidence charge murders released days later police obtained statement man said heard petitioner confess killings strength additional evidence prosecutors decided charge petitioner time absconded police discovered petitioner living houston area assumed name petitioner testify trial objection prosecutors used reaction officer question interview evidence guilt jury found petitioner guilty received sentence direct appeal appeals texas petitioner argued prosecutors use silence part case chief violated fifth amendment appeals rejected argument reasoning petitioner prearrest silence compelled within meaning fifth amendment texas criminal appeals took case affirmed ground granted certiorari resolve division authority lower courts whether prosecution may use defendant assertion privilege noncustodial police interview part case chief compare rivera moore cadc petitioner invoke privilege interview find unnecessary reach question ii privilege exception general principle government right everyone testimony garner prevent privilege shielding information properly within scope long held witness protection privilege must claim time relies murphy quoting monia see also ex rel vajtauer commissioner immigration requirement ensures government put notice witness intends rely privilege may either argue testimony sought see hoffman cure potential grant immunity see kastigar express invocation requirement also gives courts tasked evaluating fifth amendment claim contemporaneous record establishing witness reasons refusing answer see roberts witness may employ privilege avoid giving testimony simply prefer give hutcheson declining treat invocation due process proper assertion privilege ways insisting witnesses expressly invoke privilege assures government obtains information entitled garner supra previously recognized two exceptions requirement witnesses invoke privilege neither applies first held griffin california criminal defendant need take stand assert privilege trial exception reflects fact criminal defendant absolute right testify turner black dissenting see patane plurality opinion since defendant reasons remaining silent trial irrelevant constitutional right requiring expressly invoke privilege serve purpose neither showing testimony grant immunity force speak petitioner comparable unqualified right interview police silence falls outside griffin exception second held witness failure invoke privilege must excused governmental coercion makes forfeiture privilege involuntary thus miranda said suspect subjected inherently compelling pressures unwarned custodial interrogation need invoke privilege due uniquely coercive nature custodial interrogation suspect custody said voluntarily forgone privilege unless fails claim suitably warned murphy supra similar reasons held threats withdraw governmental benefit public employment sometimes make exercise privilege costly need affirmatively asserted garrity new jersey public employment see also lefkowitz cunningham public office lefkowitz turley public contracts assertion privilege tend incriminate allowed witnesses exercise privilege silence see leary requirement taxpayer complete tax form revealed income illegal activities albertson subversive activities control members communist party required complete registration form response form questions might involve admission crucial element crime principle unites cases witness need expressly invoke privilege form official compulsion denies choice admit deny refuse answer garner quoting lisenba california petitioner benefit principle undisputed interview police voluntary petitioner acknowledges agreed accompany officers station free leave time interview brief petitioner internal quotation marks omitted places petitioner situation outside scope miranda cases held various forms governmental coercion prevented defendants voluntarily invoking privilege dissent elides point cites precedents area proposition ircumstances rather explicit invocation trigger protection fifth amendment post opinion breyer critical question whether circumstances case petitioner deprived ability voluntarily invoke fifth amendment us allegation petitioner failure assert privilege involuntary simple matter say answering officer question fifth amendment grounds failed prosecution use noncustodial silence violate fifth amendment petitioner urges us adopt third exception invocation requirement cases witness stands mute thereby declines give answer officials suspect incriminating cases foreclose exception needlessly burden government interests obtaining testimony prosecuting criminal activity therefore decline petitioner invitation craft new exception general rule witness must assert privilege subsequently benefit murphy cases establish defendant normally invoke privilege remaining silent roberts example rejected fifth amendment claim defendant remained silent throughout police investigation received harsher sentence failure cooperate ruling explained defendant believed failure cooperate privileged said time sentencing determined whether claim legitimate see also sullivan vajtauer witness expressly invoke privilege standing mute also repeatedly held express invocation requirement applies even official reason suspect answer question incriminate witness thus murphy held defendant answers probation officer properly admitted trial failed invoke privilege reaching conclusion rejected notion witness must government notice formally availing privilege alone reasonably aware incriminating tendency questions quoting roberts supra brennan concurring see also kordel petitioner dispute vitality either lines precedent instead argues adopt exception cases intersection thus petitioner us hold although neither witness silence official suspicions enough excuse express invocation requirement invocation requirement apply witness silent face official suspicions reasons neither factors sufficient relieve witness obligation expressly invoke privilege conclude together contrary result little protect genuinely relying fifth amendment privilege placing needless new burden society interest admission evidence probative criminal defendant guilt petitioner proposed exception also difficult reconcile berghuis thompkins held closely related context silence defendant failed invoke privilege refused respond police questioning hours minutes slip extended custodial silence case invoke privilege surely momentary silence case either petitioner dissent attempt distinguish berghuis observing concern admissibility defendant silence instead involved admissibility subsequent statements post opinion breyer regardless whether prosecutors seek use silence confession follows logic berghuis applies equal force suspect stands mute done enough put police notice relying fifth amendment support proposed exception invocation requirement petitioner dissent argue reliance fifth amendment privilege likely explanation silence case one reply brief see post breyer dissenting whatever probable explanation silence insolubly ambiguous see doyle ohio sure someone might decline answer police officer question reliance constitutional privilege also might trying think good lie embarrassed protecting someone else every possible explanation silence probative guilt neither every possible explanation protected fifth amendment petitioner alone knew answer officer question therefore burden make timely assertion privilege garner oral argument counsel petitioner suggested unfair require suspect unschooled particulars legal doctrine anything remain silent order invoke right remain silent tr oral arg see post breyer dissenting michigan tucker observing virtually every schoolboy familiar concept language fifth amendment popular misconceptions notwithstanding fifth amendment guarantees one may compelled criminal case witness establish unqualified right remain silent witness constitutional right refuse answer questions depends reasons courts need know reasons evaluate merits fifth amendment claim see hoffman event settled forfeiture privilege need knowing murphy garner supra statements interest regularly admitted evidence criminal trials see fed rule evid good reason approach defendant silence differently finally persuaded petitioner arguments applying usual express invocation requirement witness silent noncustodial police interview prove unworkable practice petitioner dissent suggest approach unleash complicated persistent litigation suspect must say invoke privilege reply brief see post opinion breyer cases long required witness assert privilege subsequently benefit rule proved difficult apply potential close cases dissuade us adopting similar invocation requirements suspects wish assert rights cut police questioning custodial interviews berghuis slip requiring suspect unambiguously assert privilege cut custodial questioning davis standard assertions right counsel notably petitioner approach produce problems case vividly illustrates interviewing officer asked petitioner shotgun match shell casings found crime scene petitioner merely remain silent made movements suggested surprise anxiety precisely point reactions transform silence expressive conduct difficult recurring question decision allows us avoid also reject petitioner argument express invocation requirement encourage police officers tric suspects cooperating reply brief quoting south dakota neville petitioner worries officers unduly pressure suspects talking telling silence used future prosecution petitioner concedes police officers done nothing wrong accurately stat law brief petitioner found constitutional infirmity government officials telling defendant murphy required speak truthfully parole officer see greater danger interview tactics petitioner identifies long police deprive witness ability voluntarily invoke privilege fifth amendment violation petitioner rely privilege required invoke failed judgment texas criminal appeals affirmed ordered thomas concurring judgment genovevo salinas petitioner texas writ certiorari criminal appeals texas june justice thomas justice scalia joins judgment granted certiorari decide whether fifth privilege compulsory prohibits prosecutor using defendant silence evidence guilt plurality avoids reaching question instead concludes salinas fifth amendment claim fails expressly invoke privilege ante think simpler way resolve case view salinas claim fail even invoked privilege prosecutor comments regarding precustodial silence compel give testimony griffin california held fifth amendment prohibits prosecutor judge commenting defendant failure testify reasoned comments adverse inferences drawn penalty imposed defendant exercise fifth amendment privilege ibid salinas argues extend griffin rule defendant silence precustodial interview previously explained decision griffin lacks foundation constitution text history logic extended see mitchell dissenting opinion adhere view today griffin impossible square text fifth amendment provides person shall compelled criminal case witness defendant compelled witness simply jury told may draw adverse inference silence see mitchell supra scalia dissenting threat adverse inference anyone testify indeed imagine instances guilty defendant choose remain silent despite adverse inference theory less damage testimony carter kentucky powell concurring othing clause requires jurors draw logical inferences defendant chooses explain incriminating circumstances history fifth amendment support griffin time founding english american courts strongly encouraged defendants give unsworn statements drew adverse inferences failed see mitchell supra scalia dissenting alschuler peculiar privilege historical perspective privilege hemholz et al eds given griffin indefensible foundation extend defendant silence precustodial interview agree plurality salinas fifth amendment claim fails therefore concur judgment breyer dissenting genovevo salinas petitioner texas writ certiorari criminal appeals texas june justice breyer justice ginsburg justice sotomayor justice kagan join dissenting view fifth amendment prohibits prosecution commenting petitioner silence response police questioning dissent contrary conclusion january houston police began suspect petitioner genovevo salinas committed two murders previous month asked salinas come police station take photographs clear suspect app station police took salinas describes interview room brief petitioner free leave time app give miranda warnings police asked salinas questions salinas answered police asked whether shotgun home match shells recovered scene murder point salinas fell silent ibid salinas later tried convicted murder closing argument drawing testimony elicited earlier prosecutor pointed jury salinas earlier questioning police station remained silent asked shotgun prosecutor told jury among things innocent said talking tex app salinas prosecutor said respond way ibid rather answer question ibid ii question us whether fifth amendment prohibits prosecutor eliciting commenting upon evidence salinas silence plurality believes amendment bar evidence comments salinas expressly invoke privilege fell silent questioning police station ante view conclusion inconsistent case law underlying practical rationale fifth amendment prohibits prosecutors commenting individual silence silence amounts effort avoid becoming witness specified rule evidence permitting commen counsel criminal case upon defendant failure testify violates fifth amendment griffin california internal quotation marks omitted see also patane plurality opinion turner black dissenting since impermissible penalize individual exercising fifth amendment privilege police custodial interrogation prosecution may use trial fact stood mute claimed privilege face accusation miranda arizona emphasis added particularly context police interrogation contrary rule undermine basic protection fifth amendment provides cf kastigar privilege usually operates allow citizen remain silent asked question requiring incriminatory answer permit prosecutor comment defendant constitutionally protected silence put defendant impossible predicament must either answer question remain silent answers question may well reveal example prejudicial facts disreputable associates suspicious circumstances even innocent see griffin supra kassin inside interrogation innocent people confess trial advoc remains silent prosecutor may well use silence suggest consciousness guilt defendant takes witness stand order explain either speech silence prosecution may introduce say impeachment purposes prior conviction law otherwise make inadmissible thus fifth amendment issue allow comment silence directly indirectly compel individual act witness much fifth amendment forbids cf pennsylvania muniz definition testimonial includes responses questions require suspect communicate express implied assertion fact belief similarly whether questioned individual part decision remain silent invokes fifth amendment explicitly implicitly words deeds reference surrounding circumstances consequently surprising half century ago explained ritualistic formula necessary order invoke privilege quinn thus prosecutor may comment defendant failure testify trial even neither defendant anyone else ever mentions fifth amendment right circumstances defendant statement tie defendant silence right similarly prosecutor may comment fact defendant custody receiving miranda warnings stood mute regardless whether claimed privilege many words miranda supra explicit statement instead defendant deeds silence circumstances receipt warnings tie together silence constitutional right lower courts construed law even defendant received miranda warnings answers questions remaining silent others see hurd terhune may scott canterbury grieco hall ghiz see harris cases insisted defendant expressly mention fifth amendment name order rely privilege protect silence cases circumstances surrounding silence unlike present case give rise inference defendant intended silence exercise fifth amendment rights questioner greeted silence unlike present case special need know whether defendant sought rely protections fifth amendment see ante explaining cases government needs know basis refusing answer may either argue testimony sought cure potential grant immunity citation omitted cases include roberts rogers sullivan vajtauer jenkins least involve protection silence also include cases emphasized plurality even silence namely murphy garner roberts rogers individual refused answer questions government investigators roberts grand jury rogers asked principally individual wanted avoid incriminating persons roberts rogers fifth amendment protect someone incriminating others protects turn neither nature questions circumstances refusal answer provided basis infer tie silence fifth amendment knowledge tie proved critical questioner determination whether defendant proper legal basis claiming fifth amendment protection sullivan defendant silence consisted failure file tax return return later claimed revealed illegal activity bootlegger sullivan circumstances give rise inference tie silence form failing file tax return fifth amendment really want rely fifth amendment government special need know tie order determine whether example assertion privilege valid perhaps offer immunity appropriate vajtauer alien refused answer questions asked immigration official deportation proceeding ex rel vajtauer commissioner immigration circumstances gave rise distinct inference alien invoking fifth amendment privilege alien lawyer stated quite publicly hearing advised client remain silent fifth amendment grounds rather lawyer alien answer questions evidence upon warrant based presented quoting lawyer statement weakened destroyed possibility amendment linkage government challenge right invoke fifth amendment described later invocation evidently afterthought perhaps illustrative jenkins case upon plurality relies ante upon texas criminal appeals relied almost exclusively jenkins killed someone arrested turned two weeks later jenkins anderson trial jenkins claimed killing attacked prosecutor asked report alleged attack closing argument suggested jenkins failure cast doubt claim acted explained unusual form prearrest silence constitutionally protected use trial perhaps even aptly justice stevens concurrence noted privilege compulsory simply irrelevant circumstances omitted anyone known jenkins failing report attack relying fifth amendment government way determining whether claim valid jenkins roberts rogers sullivan vajtauer one reason connect silence fifth amendment government opportunity contest alleged connection still afield today case murphy garner neither involved silence rather cases defendant earlier answered questions posed government murphy speaking probation officer garner completing tax return minnesota murphy garner time providing answers neither circumstances deeds words suggested reliance fifth amendment murphy simply answered questions posed probation officer garner simply filled tax return argue statements compelled violation fifth amendment later trial murphy supra garner supra held statements compelled murphy supra garner supra circumstances indicated defendants affirmatively chosen speak write thus two sets cases one express invocation fifth amendment required tie one silence protections another something like express invocation required circumstances demanded explanation silence statements order indicate fifth amendment issue also third set cases cases may well fit second category held fifth amendment applies require express invocation despite ambiguous circumstances cases made clear individual silent need expressly invoke fifth amendment inherently compelling pressures miranda thus garrity new jersey held explicit assertion fifth amendment required course investigation assertion law cost police officers jobs similarly require explicit assertion response grand jury subpoena assertion cost two architects public contracts political official job lefkowitz turley lefkowitz cunningham leary held fifth amendment require explicit assertion privilege context marihuana tax act assertion inherently incriminating albertson subversive activities control held explicit assertion fifth amendment required first step potentially incriminating admission membership communist party also held gamblers without explicitly invoking fifth amendment need comply tax requirements inherently directly lead marchetti grosso told third category cases receives treatment first circumstances rather explicit invocation trigger protection fifth amendment today case plurality refers one additional case namely berghuis thompkins see ante case beside point berghuis defendant custody informed miranda rights subsequently silent face hours minutes questioning offered substantive answers slip held waived fifth amendment rights respect later speech said nothing prosecutor right comment preceding silence prosecutor sought indeed prosecutor lawfully tried given statement randa prosecutor comment fact receiving miranda warnings suspect stood mute end began ritualistic formula necessary order invoke privilege quinn much depends circumstances particular case important circumstances whether one fairly infer individual questioned invoking amendment protection unclear whether particularly important questioner know whether individual even whether event good reason excusing individual referring fifth amendment inherent penalization simply answering applying principles present case hold salinas need expressly invoked fifth amendment context criminal investigation police told salinas made clear suspect interrogation took place police station salinas represented counsel relevant question whether shotgun salinas home incriminate amounted switch subject matter obvious new question sought ferret whether salinas guilty murder see circumstances give rise reasonable inference salinas silence derived exercise fifth amendment rights recognized repeatedly many indeed americans aware constitutional right incriminate answering questions posed police interrogation conducted order figure perpetrator crime see dickerson brogan michigan tucker nature surroundings switch topic particular question suggested right generally know issue critical moment salinas represented counsel likely used precise words fifth amendment invoke rights likely aware technical legal requirements need identify fifth amendment name time need categorize salinas silence based fifth amendment supported presence full force predicament discussed earlier namely forcing salinas choose incrimination speech incrimination silence need also supported absence special reason police know certainty whether salinas fact relying fifth amendment whether doubt really risk see hoffman whether grant immunity see kastigar given circumstances salinas silence sufficient put government notice apparent claim privilege quinn supra reasons similar given griffin fifth amendment bars evidence silence admitted salinas mentioned prosecutor see recognize cases may arise facts circumstances surrounding individual silence present closer question critical question whether circumstances give rise fair inference silence rests fifth amendment always prove easy administer consideration support plurality approach administrative problems accompanying plurality approach even worse plurality says suspect must expressly invoke privilege ante really mean suspect must use exact words fifth amendment individual lawyer know particular words legally magic solicitor general help adds suspect may mak claim language questioner may reasonably expected understand attempt invoke privilege brief amicus curiae quoting quinn supra alteration original counts making claim suppose individual says let discuss something else sure want answer suppose gets leaves room cf davis mississippi affirming settled principle police right request citizens answer voluntarily questions concerning unsolved crimes right compel answer berkemer mccarty noting even someone detained terry stop obliged respond police questions florida royer plurality opinion simple silence present context different basic problem plurality effort simple clear explicit statement rule poses serious obstacle like salinas seek assert basic fifth amendment right remain silent likely unaware linguistic detail time acknowledging case law require use specific words see ante leaves plurality without administrative benefits might hope find requiring detail far better view pose relevant question directly one fairly infer individual silence surrounding circumstances exercise fifth amendment privilege need simplicity constitutional importance applying fifth amendment seek protection case law suggest right question ask answer question circumstances today case clearly yes reasons believe fifth amendment prohibits prosecutor commenting salinas silence respectfully dissent contrary conclusion footnotes dissent argues cases neither nature questions circumstances refusal answer provided basis infer tie silence fifth amendment post opinion breyer none precedents suggests governmental officials obliged guess meaning witness unexplained silence implicit reliance fifth amendment seems probable roberts say much despite holding defendant case required explain fifth amendment basis failure cooperate investigation led prosecution cases support distinction dissent draws silence failure invoke privilege making incriminating statements see post breyer dissenting example murphy case witness made incriminating statements failing invoke privilege repeatedly relied roberts vajtauer two cases witnesses remained silent make incriminating statements similarly kordel cited vajtauer among cases proposition defendant failure time assert constitutional privilege leaves position complain compelled give testimony petitioner correct due process prohibits prosecutors pointing fact defendant silent heard miranda warnings doyle ohio rule apply suspect received warnings implicit promise silence used jenkins anderson dissent suggests officials case special need know whether defendant sought rely protections fifth amendment post opinion breyer never said government must demonstrate need basis invocation requirement apply rule require judicial hypothesizing probable strategic choices prosecutors often use immunity compel testimony witnesses invoke fifth amendment