I've seen a lot recently on this site discussing Salinas v Texas. Did this 2013 case effectively roll back some of the protections of Miranda v Arizona? Because I'm trying to understand how the following:

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “ ‘must claim it.’ ”

doesn't violate the spirit of:

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

I understand that in Salinas the person in question wasn't "in custody", but my (lay) understanding of Miranda is that the whole intent is to protect those less educated in law. Am I misunderstanding Miranda, or does Salinas roll back its protections?

2 Answers 2


Your presumption could be correct if "spirit" were a clearly identifiable aspect of law. It is not unreasonable to think that the court was concerned with the fact that some people might not know the law well enough to know that they don't have to confess when arrested and interrogated. The court could have written a much broader holding, if it wanted to, but it didn't (perhaps because the members of the court did not feel that a broad prohibition against any use by the government of the defendant's statements was not prohibited by the constitution). If Miranda had been stated differently, then perhaps Salinas and prior cases would have turned out differently. Or, if the Salinas court and prior courts had been an ideologically completely different court, then perhaps that ruling would have come out differently. You can read Breyer's dissent to see how 4 of 9 justices felt about the matter. Salinas doesn't roll anything back because it wasn't clearly there in the first place, it was only possibly there, and it turns out it wasn't, by a vote of 5 to 4.


Salinas describes Miranda:

we have held that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467–468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.” Murphy, supra, at 429–430.

Miranda was about accounting for the understandable pressure to speak in the context of a custodial interrogation. In a custodial setting, speaking and thereby failing to claim a Fifth Amendment right to silence cannot be understood as waiving that right unless warned as per Miranda.

That holding was not touched in Salinas.

The unwarned custodial interrogation is one of three narrow exceptions to the general rule that the Fifth Amendment is not self-invoking. The circumstances in Salinas did not fall within one of those exceptions (all parties agreed that it was a voluntary discussion from which Salinas was free to leave).

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