 The Supreme Court extended the standard from Berghuis v. Thompkins in Salinas v. Texas , 570 U.S. _ _ _ ( 2013 ) , on June 17 , 2013 , holding that a suspect 's silence in response to a specific question posed during an interview with police when the suspect was not in custody and the suspect had been voluntarily answering other questions during that interview could be used against him in court where he did not explicitly invoke his Fifth Amendment right to silence in response to the specific question . Of the five justices who concluded that the suspect 's silence could be used against him in these circumstances , Justices Alito , Roberts and Kennedy concluded that the defendant 's Fifth Amendment claim failed because he did not expressly invoke the privilege . The other two Justices , Thomas and Scalia , concluded that the defendant 's claim would fail even if he had invoked the privilege , on the theory that the prosecutor 's comment at the trial — regarding the defendant 's silence in response to a question during the police interview — did not compel the defendant to give self @-@ incriminating testimony . 
