Pretty much every year, the Supreme Court
finds another way to
chip away at
your Miranda rights. This morning, it's Texas' Genovevo Salinas who finds himself on the wrong end of the stick, as
a 5-4 (or 3+2 v. 4, as you'll see) Court finds nothing wrong with a prosecutor's holding his silence against him.
Late December, 1992: double murder in a home, no witnesses. Police recover six shotgun shell casings at the scene. The investigation leads police to Salinas, who had been with the deceased at a party the night before, and who owned a car similar-ish to the one seen leaving the scene. Salinas agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. Heck, they told him they wanted to take some pictures of him and help clear him.
Because this was voluntary and Salinas was not in custody, he wasn't read his Miranda rights. He answered questions in the interview room voluntarily, until he was asked whether his shotgun “would match the shells recovered at the scene of the murder.” According to the record, Salinas “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” He answered a few more questions, and left.
A few days later, another witness claimed he heard Salinas confess. He was charged, but by that time had fled the scene, and was not arrested until 2007. At his trial, Salinas did not testify, and prosecutors used his reaction to the officer’s question during the 1993 interview as evidence of his guilt. At closing argument, drawing on testimony he had elicited earlier, the prosecutor pointed out to the jury that Salinas, during his earlier questioning at the police station, had remained silent when asked about the shotgun. The prosecutor told the jury, among other things, that “‘[a]n innocent person’” would have said, “‘What are you talking about? I didn’t do that. I wasn’t there.’” But Salinas, the prosecutor said, “‘didn’t respond that way.’” Rather, “‘[h]e wouldn’t answer that question.’”
It is hornbook law that when a defendant opts not to testify at his own trial or speak to police, the prosecutor can't comment on that—you can't penalize him for invoking his right against self-incrimination. According to Justices Alito, Kennedy and the chief justice, however, Salinas didn't exactly invoke his Miranda rights here.
Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and “was free to leave at any time during the interview.” That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. ...The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.
The decision builds off
the Berghuis one from 2010, maintaining that to obtain Miranda rights, you actually have to invoke those rights verbally.
To obtain a five vote majority, add a concurrence from [CTRL-V] Justice Thomas and Justice Scalia, who would have gone further than the other conservative justices. How much further? Overturning-a-cherished-Warren-Court-precedent further. Justices Scalia and Thomas would have overturned Griffin v California, the 1965 case which established that prosecutors cannot comment on a defendant's silence.
Griffin is impossible to square with the text of the Fifth Amendment, which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” A defendant is not “compelled . . . to be a witness against himself” simply because a jury has been told that it may draw an adverse inference from his silence. See Mitchell, supra, at 331 (Scalia, J., dissenting) (“[T]he threat of an adverse inference does not ‘compel’ anyone to testify. . . . Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony”); Carter v. Kentucky, 450 U. S. 288, 306 (1981) (Powell, J., concurring) (“[N]othing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”).
Nor does the history of the Fifth Amendment support Griffin. At the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so. See Mitchell, supra, at 332 (Scalia, J., dissenting); Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination 204 (R. Hemholz et al. eds. 1997). Given Griffin’s indefensible foundation, I would not extend it to a defendant’s silence during a precustodial interview. I agree with the plurality that Salinas’ Fifth Amendment claim fails and, therefore, concur in the judgment.
Which leaves the four liberal justices in dissent, and it's Justice Breyer taking this one for the team. Basically, they'd have held that
being silent is enough; you don't have to expressly claim your constitutional rights:
“[N]o ritualistic formula is necessary in order to invoke the privilege.” Much depends on the circumstances of the particular case, the most important circumstances being: (1) whether one can fairly infer that the individual being questioned is invoking the Amendment’s protection; (2) if that is unclear, whether it is particularly important for the questioner to know whether the individual is doing so; and (3) even if it is, whether, in any event, there is a good reason for excusing the individual from referring to the Fifth Amendment, such as inherent penalization simply by answering.
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. This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime. The nature of the surroundings, the switch of topic, the particular question—all suggested that the right we have and generally know we have was at issue at the critical moment here. Salinas, not being represented by counsel, would not likely have used the precise words “ Fifth Amendment” to invoke his rights because he would not likely have been aware of technical legal requirements, such as a need to identify the Fifth Amendment by name.
At the same time, the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence.
Moreover, the dissenters note, what would forcing a suspect to espouse his Miranda rights entail?
The plurality says that a suspect must “expressly invoke the privilege against self-incrimination.” But does it really mean that the suspect must use the exact words “Fifth Amendment”? How can an individual who is not a lawyer know that these particular words are legally magic? Nor does the Solicitor General help when he adds that the suspect may “mak[e] the claim ‘in any language that [the questioner] may reasonably be expected to understand as an attempt to invoke the privilege.’ ” What counts as “making the claim”? Suppose the individual says, “Let’s discuss something else,” or “I’m not sure I want to answer that”; or suppose he just gets up and leaves the room. How is simple silence in the present context any different?
The basic problem for the plurality is that an effort to have a simple, clear “explicit statement” rule poses a serious obstacle to those who, like Salinas, seek to assert their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail. At the same time, acknowledging that our case law does not require use of specific words, leaves the plurality without the administrative benefits it might hope to find in requiring that detail.
Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today’s case is clearly: yes.
To which the plurality of Alito et al responds:
[This] approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing officer asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At precisely what point such reactions transform “silence” into expressive conduct would be a difficult and recurring question that our decision allows us to avoid.
We also reject petitioner’s argument that an express invocation requirement will encourage police officers to “ ‘unfairly “tric[k]” ’ ” suspects into cooperating. Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution. But as petitioner himself concedes, police officers “have done nothing wrong” when they “accurately stat[e] the law.”... So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation.
Fourteen decisions remain for this term, including the four biggest: Prop 8, DOMA, the Voting Rights Act and affirmative action.