U.S. Supreme Court again holds remaining silent is not enough to invoke the right to remain silent

by admin on June 18, 2013

Genovevo Salinas v. Texas, USSC No. 12-246, 6/17/13

United States Supreme Court decision, affirming Salinas v. State, 369 S.W.2d 176 (Tex. Crim. App. 2012)

Consistent with the rule applied to a defendant’s silence after being informed of his Miranda rights, the Supreme Court holds that a suspect who is being questioned before he was arrested and read Miranda does not invoke his right against self-incrimination by merely staying quiet in response to police questioning.

Salinas was suspected of being involved in a homicide. He consented to a search of his home, which turned up a shotgun, and then to agreed to go to the police station for questioning. He was not arrested and not given Miranda warnings. He answered questions until the officer asked if shells found at the crime scene would match his gun; instead of answering, Salinas remained silent, “[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.” (Slip op. at 2). At trial the prosecutor elicited testimony about this reaction as evidence of his guilt. Salinas objected, arguing it violated his Fifth Amendment right not to incriminate himself. (Slip op. at 3).

The Court accepted the case to resolve the division in lower courts as to whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview against the defendant in its case-in-chief. (Slip op. at 3.) But a plurality of the Court doesn’t reach that question because they conclude Salinas did not invoke the privilege during his interview.

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “‘must claim it.’” Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S. 424, 427 (1943)). Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment … rejecting petitioner’s Fifth Amendment claim is affirmed. (Slip op. at 1-2).

There are two recognized exceptions to the general requirement that the privilege be expressly invoked, but neither applies here. First, a criminal defendant need not take the stand and assert the privilege at his own trial. Griffin v. California, 380 U.S. 609, 613-15 (1965). Second, failure to invoke the privilege may be excused if government coercion makes forfeiture of the privilege involuntary–e.g., during custodial interrogation, or where exercise of the privilege is so costly it effectively compels the failure to invoke the privilege. (Slip op. at 4-6). The Court declines to adopt a new exception for cases in which a witness stands mute and thereby declines to give an answer that officials suspect would be incriminating, finding such an exception foreclosed by prior cases establishing that a defendant normally does not invoke the privilege by remaining silent and inconsistent with Berghuis v. Thompkins, 560 U. S. 370 (2010), which held that a defendant failed to invoke the privilege when he refused to respond to almost three hours of police questioning after receiving Miranda warnings. (Slip op. at 6-9). “If the extended custodial silence in that case did not invoke the privilege, then surely the momentary silence in this case did not do so either.” (Slip op. at 9).

Finally, the Court rejects the claim it is “unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his ‘right to remain silent.’” Instead, the Court holds, “popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself’; it does not establish an unqualified ‘right to remain silent.’” (Slip op at 10).

Justices Thomas and Scalia concur in the judgment, but, because they reject the Griffin rule against commenting on a defendant’s silence as “impossible to square with the text of the Fifth Amendment,” they would simply have held that the prosecutor could have used Salinas’s silence against him 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.” (Concur. at 1-2).

A dissent by Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, notes there has never been a need for “a ritualistic formula” to invoke the privilege, Quinn, 349 U.S. at 164, and concludes that under the circumstances of this case, Salinas’s silence gave rise to “a reasonable inference” that he was exercising his Fifth Amendment rights. (Dissent at 9-10).

Our post on the cert grant noted this case had the potential to change Wisconsin’s long-standing rule that comment on a defendant’s pre-arrest, pre-Miranda silence violates the Fifth Amendment. State v. Fencl, 109 Wis. 2d 224, 232-38, 325 N.W.2d 703 (1982). By deciding the case without reaching the validity of that view, the Court leaves Fencl intact, for now.

As to the Court’s holding that a defendant who has not been arrested or ‘Mirandized” must expressly invoke the privilege, that does not appear to change our practice, either. Fencl itself doesn’t address whether the defendant must invoke the privilege at the time of the questioning (though Fencl did say he wanted to talk to his lawyer, who returned to the police station with Fencl and did all the talking, 109 Wis. 2d at 233-35). But in State v. Mark, 2006 WI 78, ¶27, 292 Wis. 2d 1, 718 N.W.2d 90, the supreme court held that in a “prearrest situation, in order to effectively invoke his or her Fifth Amendment rights against self-incrimination, [the suspect] must ordinarily assert the privilege.” In so holding, the court withdrew language from State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), that conflicts with Minnesota v. Murphy, and the apparently conflicting language in Zanelli in turn relied on Fencl. See Mark, 292 Wis. 2d 1, ¶¶20, 24. Fair to say, then, that Wisconsin already requires invocation of the right to silence in this situation.

Perhaps, as the plurality says (slip op. at 11), police won’t try to “unfairly trick” suspects into talking by telling them their silence can be used in court; but they now have good reason to avoid giving Miranda to suspects who haven’t been arrested (something sometimes done just to be safe). After all, as the plurality notes (slip op. at 9 n.3), if Salinas had been warned he had the right to remain silent (unnecessarily, as he wasn’t in custody), under Doyle v. Ohio, 426 U.S. 610, 617-18 (1976), due process rules would have precluded the prosecutor’s comment on his silence. Whether this decision changes police practice remains to be seen.

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U.S. Supreme Court holds that a fact that increases the minimum mandatory sentence for a crime must be submitted to the jury

by admin on June 18, 2013

Allen Ryan Alleyne v. United States, USSC No. 11-9335, 6/17/13

United States Supreme Court decision, vacating and remanding United States v. Alleyne, No. 11-4208 (4th Cir. Dec. 15, 2011)

Since Apprendi v. New Jersey, 530 U.S. 466 (2000), a defendant has had the right to demand the jury find beyond a reasonable doubt any fact that increases the maximum sentence for a crime. Apprendi held that a fact which increases the penalty is an “element” of the criminal offense, and the Sixth Amendment requires all offense elements to be proven to a jury beyond a reasonable doubt. But the Court also held, in Harris v. United States, 536 U.S. 545 (2002), that a defendant had no right to a jury finding of facts that increased mandatory minimums. Are these holdings consistent? The Court holds they are not, and Apprendi must prevail:

Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. We conclude that this distinction is inconsistent with our decision in Apprendi v. New Jersey, 530 U. S. 466 (2000), and with the original meaning of the Sixth Amendment. Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. See id., at 483, n. 10, 490. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Accordingly, Harris is overruled. (Slip op. at 1-2).

The Court concludes “there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum.” (Slip op. at 15). It is indisputable, the Court says, that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed, for just as the maximum penalty marks the outer boundary of the range, so the minimum marks its floor. (Slip op. at 11). Because the legally prescribed range is the penalty affixed to the crime, a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense:

Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s “expected punishment has increased as a result of the narrowed range” and “the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.” Apprendi, supra, at 522 (THOMAS, J., concurring). … This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury…. (Slip op. at 12).

Alleyne was convicted by a jury of robbery and using or carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A), which carried a five-year minimum sentence and a maximum of life. The jury found he had used a firearm, but not that he had “brandished” it, a fact which upped the minimum sentence to seven years. The judge concluded he had brandished the gun and, citing Harris to overrule Alleyne’s objection, imposed a seven year sentence. (Slip op. at 2-3). Given the Court’s holding, Alleyne is now entitled to resentencing “consistent with the jury’s verdict.” (Slip op. at 17).

That could, of course, result in another seven year sentence, which is the point of the dissent by the Chief Justice (joined by Scalia and Kennedy), who believes no additional fact finding is necessary in this situation because the jury’s finding allowed a sentence anywhere in the range from five years to life, and seven years is within that range. Justice Alito also dissented, saying if any precedent ought to be reconsidered it is Apprendi, as there are “strong reasons” to doubt that case’s analysis of the original understanding of the jury trial right. Justice Breyer also disagrees with Apprendi , but he concurs in the judgment because that case “has now defined the relevant legal regime for an additional decade…, the law should no longer tolerate the anomaly that the Apprendi/Harris distinction creates.” (Concur. at 1). This 5-4 vote suggests there’s still some room for debate about further extensions of Apprendi.

Practitioners handling federal cases will be immediately affected by this ruling, as the federal minimum mandatory sentencing schemes like the one applied to Alleyne will now be subject to additional jury findings. (The knowledgeable and expert Doug Berman has more on the possible impact of the decision on federal sentencing law.) State criminal cases are not immediately affected, as our current minimum mandatory sentences (most of which are in §§ 939.616 to 939.619) are tied to specific offenses, so proof of the basic elements of the offense will carry the minimum sentence with no additional jury findings needed.

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State v. Bobby Tate, 2012AP336-CR, petition for review granted 6/12/13

by admin on June 16, 2013

Review of unpublished court of appeals decision; case activity

Issue (from the Petition for Review)

Should this Court accept review to examine when law enforcement can electronically track a cell phone in order to locate the phone’s user?

More specifically, should this Court review a) whether obtaining a cell phone’s location constitutes a “search” within the meaning of the 4th Amendment, b) if so, what probable cause standard applies before police can obtain location information, and c) whether statutory authorization is necessary before a court can permit this kind of search, and whether such statutory authority exists?

This is the second cell-phone tracking case the court has accepted for review during its next term. The other is State v. Nicolas Subdiaz-Osorio, 2010AP3016-CR (Wis. Ct. App. Nov. 15, 2012) (per curiam); for more on that case, along with background on the tracking issue, see here.

In Subdiaz-Osorio the court of appeals assumed the tracking was unlawful but held the use of the evidence it provided was harmless. In this case the court engaged in more analysis of the legality of the tracking, though, as described in our post on the decision, it did not address whether there was authority for an order tracking a phone to find its location, but only whether there was probable cause for the tracking order issued in this case. As noted in more detail in our prior posts on both cases, this issue is arising with increasing frequency, it presents obvious privacy issues, and so the court’s decision in this case and Subdiaz-Osorio will necessarily  have an impact on Wisconsin practice.

Finally, apart from challenges to the authority for the tracking, there have been some successful challenges to the evidentiary use of the tracking data itself. For more, see our recent post on whether cell tower tracking is “junk science.”

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State ex rel. Ardonis Greer v. David H. Schwarz, 2011AP2188, petition for review granted 6/12/13

June 16, 2013

Review of published court of appeals decision; case activity Issues (composed by On Point): If the Department of Corrections erroneously issues a probationer a discharge certificate under 973.o9(5) before the probationary term expired, but later discovers the error and proceeds to revoke the probationer, did the Department lose jurisdiction over [...]

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State v. Brandon H. Bentdahl, 2012AP1426, petition for review granted, 6/13/13

June 16, 2013

Review of unpublished court of appeals decision; case activity Issue (composed by On Point) Does a circuit court have discretion to dismiss a refusal proceeding after the prosecution of the underlying OWI charge results in an acquittal? This case is of obvious interest to OWI practitioners, even if its facts [...]

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U.S. Supreme Court: Federal judge’s participation in plea discussions is subject to prejudice determination

June 13, 2013

United States. v. Anthony Davila, USSC No. 12-167, 6/13/13 United States Supreme Court decision, reversing United States v. Davila, 664 F.3d 1355 (11th Cir. 2011) (per curiam) Rule 11(c)(1) of the Federal Rules of Criminal Procedure provides that parties may discuss and reach a plea agreement, but that the court “must [...]

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TPR — failure to assume parental responsibility; sufficiency of the evidence

June 13, 2013

Patrick J.T. v. Shelly S., 2013AP778 and 2013AP779, District 4, 6/13/13; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP778; 2013AP779 Under the totality-of-the-circumstances standard for determining whether a parent has assumed parental responsibility, Tammy W-G. v. Jacob T., 2011 WI 30, ¶22, 333 Wis. 2d 273, 797 [...]

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The remains of the term . . .

June 13, 2013

We are fast approaching the end of the 2012-2013 term for SCOW and SCOTUS.   If you are wondering which defense-related cases and issues have yet to be decided, see On Point’s list below.  Remember, SCOW typically releases its last decision in mid to late July.  The calendar to your right will [...]

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Plea bargain breach by prosecutor — negative allocution

June 12, 2013

State v. Aaron L. Wood, 2012AP1808-CR, District 2, 6/12/13; court of appeals decision (not recommended for publication); case activity The state did not breach the plea agreement where the prosecutor, after making the agreed-upon recommendation, expressed alarm and concern at what he discovered in the PSI after the plea agreement [...]

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Substitution of judge — § 971.20(4),(5); reassignment of original judge does not make the judge “new” for substitution purposes. Admission of evidence — limiting the playing of audio recordings. Armed robbery, § 943.32 — sufficiency of the evidence.

June 12, 2013

State v. Keith M. Bohannon, 2012AP1691-CR, District 1, 6/11/13; court of appeals decision (recommended for publication); case activity Substitution of judge; “new” judge under § 971.20(5) When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is [...]

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