In the case of Genovevo Salinas v. Texas, the U.S Supreme Court ruled that a defendant's silence during pre-arrest questioning can be used against them in court as evidence of guilt. The case revolved around Genovevo Salinas who was voluntarily questioned about a 1992 murder without being read his Miranda rights since he wasn't under arrest at that time. When asked if shotgun shells found at the crime scene would match his gun, Salinas didn't answer and exhibited signs of discomfort. At trial, prosecutors argued this reaction indicated guilt which led to his conviction for murder. On appeal to the Supreme Court in 2012, it was decided by a majority vote (5-4) that because Salinas failed to explicitly invoke his Fifth Amendment right against self-incrimination during voluntary police questioning prior to arrest or detention, prosecutors could use his silence as part of their case.

In the dissenting opinion for Genovevo Salinas v. Texas, Justice Breyer argued that a suspect's silence during noncustodial police questioning should be protected by the Fifth Amendment right against self-incrimination. He contended that this protection should not hinge on whether or not a suspect explicitly invokes their rights, as it is unreasonable to expect an average person under pressure to understand and articulate these legal nuances. Furthermore, he pointed out inconsistencies in how courts have interpreted 'tacit admissions', where silence can be seen as incriminating evidence. This interpretation could potentially violate the principle of 'innocent until proven guilty'. Therefore, he disagreed with the majority ruling which held that without explicit invocation of his rights by Salinas during voluntary questioning about a murder case, his subsequent silence could be used against him at trial.