Lower courts disagree about whether and when the Fifth Amendment permits prosecutors to raise an adverse inference of guilt from a criminal suspect's silence. In Salinas v. Texas, the Supreme Court introduced a new wrinkle into the constitutional analysis: Suspects must first expressly invoke their right to remain silent during police questioning in order to later claim protection for that silence at trial. Significantly, silence alone does not constitute proper invocation and instead forfeits the ability to challenge an adverse inference offered by the prosecution. This Note explores the outer limits of the express invocation requirement and focuses on its application to an area of the criminal investigation process left unaddressed by Salinas: the "postarrest setting," defined as the period after a suspect's arrest but before receipt of Miranda warnings. This Note examines the implications of requiring express invocation in the postarrest setting and identifies features that distinguish that setting from other scenarios considered by the Supreme Court in its prior invocation cases, which used law enforcement interests specific to police interrogations to justify their holdings. This Note concludes that an express invocation requirement should not apply to the postarrest setting, where this interrogation rationale is absent.
