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

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.

UPDATE (6/20/13): Orin Kerr has published a good post discussing the background of the decision, its possible impact on police practices, and the issues likely to arise in applying the decision.

{ 1 comment… add one }
  • Andrew M. Morgan June 19, 2013, 3:51 am

    There’s a line of cases, of which Fencl is part, that had said silence is the right of the innocent as well as the accused, and may be invoked at any time, before during and after arrest, and merely by not answering a question even after having answered some questions. And the reasons behind this include that we tell our citizens we all have the foundational right not to incriminate ourselves, and more broadly, the right to remain silent. It’s hardly a right to remain silent anymore, when you must muster the magic words, at a time before the police need to warn you of that need and what the magic words are. To force citizens to explain themselves is obnoxious to freedom and fundamental principles of justice. There is unlimited variety of circumstances in which a suspect needs to remain silent for reasons other than his guilt of the offense being investigated. Even an innocent man can feel the highly trained techniques of subtle pressure and disguised misdirection the police are allowed to employ, and fib in the hopes of fitting his story to the police fake story, or tell what he believes is entirely innocent but in fact becomes another piece that helps build the police case. Note well what they’re doing: they are further hewing off access to the right to remain silent, by shrinking the conditions under which they must remind the suspect of that right; here they are actually carving off a deep piece of the right itself.

    AND look at how deeply pernicious this is. Suppose now you’re being questioned by non-police. Suppose you are approached by a clutch of news reporters, barking questions at you. Anything you might say to these persons can be used against you. But will it now be true that anything you don’t say to these people can also be used against you, in the courtroom?

    The number one source of wrongful convictions is confessions and admissions. The solution can’t be in more of the same. Rather, the solution is better training for police, to see the larger picture and better understand their role and their partnership with their communities. And from that starting point, adopt better procedures for investigation.

    The founders would quickly have mutinied and set off a second revolution, if new rule were shoved in their faces back then.

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