Tuesday, June 18, 2013

You Have The Right To Remain Silent...Sort Of

If You Want To Claim The Fifth...

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.   If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

The Constitution’s Fifth Amendment gives an individual suspected of crime a right not to be forced, by police or other government officials, into giving up evidence that would show he or she was guilty of a crime.   The Court had ruled previously, in the famous case of Miranda v. Arizona in 1966, that an individual who was being held by police and could not leave the police station had to be told of a right to remain silent.

But the new case before the Court on Monday did not involve an individual who was being held against his will by police officers.  The individual, Genevevo Salinas of Houston, had voluntarily gone to a police station when officers asked him to accompany them to talk about the murder of two men.   So, in that situation, he was not entitled to be told about his right to remain silent under the Fifth Amendment.

He answered most of the officers’ questions, but simply remained silent when they asked him whether shotgun casings found at the scene of the murders would match his gun.   He shifted his feet, and others acted nervously, but did not say anything.   Later, at his trial, prosecutors told jurors that his silence in the face of that question showed that he was guilty, that he knew that the shotgun used to kill the victims was his.
It begs the question, what was the defendant doing voluntarily going to the police department and answering questions if the gun was indeed his? I sort of get the logic of the plurality (that you have to specifically invoke the 5th if you're not actually under arrest) but the idea that "silence" can be used as evidence of anything, let alone basis for a murder conviction, is an astonishing reach.

Worse was Scalia and Thomas's concurrence. Just when you start to lean their way (Scalia in the case I wrote about here, Thomas from his majority opinion in Alleyne, with the other four liberal members of the court, here), they come out with something completely wacky and incoherent. 
I think there is a simpler way to resolve this case. In my view, Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony.  
Apparently Justice Thomas isn't familiar with Post Hoc Ergo Propter Hoc. The concurrence is blather.

Still, while I agree with the dissent in this case, I also have problems with it too.

From Breyer's dissent:
Applying these principles to the present case, I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question — about whether the shotgun from Salinas' home would incriminate him — amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder. These circumstances give rise to a reasonable inference that Salinas' silence derived from an exercise of his Fifth Amendment rights.
I could make the same argument about the dissent as I did about the plurality: you are trying to interpret silence as meaning something (here, that he was exercising his 5th privilege; above that he wasn't and was admitting to a crime). Fundamentally, silence is neutral and says or admits nothing.

At the end of the day, this was a very narrow ruling. The precedent that Scalia and Thomas really wanted to establish (that silence exercised under the 5th could be used as evidence against you) was basically rejected 7-2.

The case is Salinas v. Texas (2013)

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