The Supreme Court Just Took Away Your Right to Remain Silent

Once a person is arrested and the police start an interrogation, the Miranda warnings are given. “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court, etc” The Supreme Court has also held, properly, that if anyone declines to take the witness stand during the trial, the prosecutor can’t attack that choice to the jury with comments like, “He could have taken the stand to tell us his side of the story, but he didn’t. That tells us quite a bit, doesn’t it?” The rationale against allowing that sort of “evidence” is that if one really has a right against self-incrimination, the government should not be permitted to attack it. The prosecutor must use other evidence to persuade the jury of guilt.

In Salinas v. Texas, 570 U.S. ­­­___ (2013) (Slip. Op. available here), the Supreme Court held that the Fifth Amendment privilege against self-incrimination does not protect a witness's silence in the face of a voluntary, noncustodial police interview. Rather, a person who is not under arrest (or otherwise in custody) and voluntarily speaks to the police must  affirmatively and timely invoke the privilege  to benefit from its protections. The Court stated that there was no "ritualistic formula" necessary to assert the privilege, but that a witness could not do so "by simply standing mute."  Id. at 3 (citation omitted). If an individual fails to invoke, and is later charged with a crime, the prosecution may use his silence at trial as evidence of his guilt.

Petitioner Genovevo Salinas was a possible witness to a double murder. The police went to his home to question him, and he agreed to hand over his shotgun for ballistics testing. He further agreed to go to the police station for more questioning. Notably, because Salinas was not "in custody," police were under no obligation to read him Miranda warnings, and he was free to leave the station at any time.  During most of his hour-long interview, Salinas answered questions. At one point, the police asked Salinas if shells recovered from the crime scene would match the shotgun he had handed over. Salinas did not answer, but sat in silence for a few moments before the police moved on to other questions that Salinas answered. Eventually, Salinas was charged with, and tried for, the double murder. In its case-in-chief at trial, prosecutors introduced evidence of Salinas's silence in response to the police question about the shell casings, and argued that his silence was evidence of his guilt. The jury convicted Salinas, and two Texas Courts of Appeals affirmed the conviction.  Id. at 2-3.

 —The National Law Review

As the Salinas dissent points out, because of its focus, the plurality’s ruling seems to open up future dispute regarding whether the individual’s words or actions are clear enough to invoke the privilege.  Decisions in this area suggest that if a witness mentions the word “lawyer” in declining to speak to investigators, courts are more likely to view that as an invocation that cannot be commented upon. The court’s ruling in Salinas is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. Future decisions might also limit Salinas’s rule to cases where the witness was silent on only one question or a limited number of questions in the midst of an interview, viewing an express refusal to answer any further questions as clear enough notice that the witness is invoking the Constitutional privilege.

Related:
On Petition for a Writ of Certiorari to the Texas Court of Criminal Appeals