Sometimes you have to wonder if the U.S. Supreme Court has lost sight of the Constitution altogether. The Miranda decision itself moved the focus from the constitutional right to remain silent to the act of advising the suspect of that right. Today, police officers are given forms and cards to read to make sure they get it right. Now, a person who is silent, but does not invoke the right to silence, may lose the right not to have his silence used against him.
More specifically, in a 5-4 opinion, the U.S. Supreme Court held that a person who is not in police custody or has not received Miranda warnings who voluntarily submits to police questioning about a crime and responds with silence may be subject to the prosecution’s use of this silence as evidence of guilt at trial; this does not violate the Fifth Amendment since the right against self-incrimination was not invoked. In essence, the decision undermines the protections afforded by the Fifth Amendment. The case is Salinas v. Texas, which was released on June 17, 2013.
The jury convicted Salinas
In 1992, two brothers were shot and killed in Houston. Police recovered six shotgun shells. The police investigation led them to Salinas who was at a party hosted by the brothers the night before they were murdered. He agreed to go with police to the station for questioning and to turn over his shotgun for ballistic testing. The noncustodial interview lasted about an hour. At one point, police asked if his shotgun would match the recovered shells. In response, he looked at the floor, bit his lip, shuffled his feet, and tensed up. A few days later, police received a statement from a man who heard Salinas confess to the offense. Police decided to charge him, but by then he had absconded and was living under an assumed name. Eventually, Salinas went to trial and prosecutors used Salinas’ reaction during the interview as evidence of guilt. The jury convicted him. He was sentenced to 20 years in prison.
The Supreme Court granted certiorari to determine whether the prosecution utilizing a person’s silence before arrest as evidence at trial is a Fifth Amendment violation. However, the plurality never reached that question because Salinas never invoked his right against self-incrimination during the interview. In other words, if an individual voluntarily talks to the police, the situation is outside the scope of Miranda, so the right must be invoked or lost. Therefore, the Court affirmed.
In Justice Thomas’ concurrence, joined by Justice Scalia, he felt that Salinas’ claim would not have succeeded even if he invoked his right against self-incrimination. This is because the prosecutor’s comments regarding the silence did not force him to provide self-incriminating testimony.
Justice Breyer in a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan, stated that the Fifth Amendment prohibits the prosecution from making commentary on silence as a response when fielding police questions. The dissenters would have held that Salinas did not need to invoke the Fifth Amendment. When police asked him about the shotgun shells, there was a switch in subject matter that indicated he was a suspect. Moreover, he was not represented by an attorney. Such circumstances allow a reasonable inference that by remaining silent he was exercising his Fifth Amendment rights. Justice Breyer stressed that no ritualistic formula is necessary to invoke the privilege and case law does not require the use of specific words either.
Justice Breyer may be correct, but his rationale is found in the minority opinion. So, the law today is that silence is not enough. If we look at the rather maddening history, before Miranda, silence was enough. A person who actually remained silent could not have his silence used against him. The change that Miranda brought was based on the concern that a suspect might not understand that he could remain silent. The Court insisted that he be told of his right to remain silent, and his right not to have that silence used against him. The problem is that for suspects like Mr. Salinas, they are not formally under arrest so no Miranda warning is given. Because no warning is given, there is no verbal invoking of the right to remain silent. Now, due to the Salinas opinion, the suspect must then break his silence to assert the right to remain silent, and then actually be silent to preserve the right not to have his silence used against him.
We will watch with great interest as courts across the country try to make sense of this.
The trial lawyers at The Kronzek Firm PLC, aggressively protect clients’ constitutional rights all across the lower peninsula of Michigan.