A sharply divided Supreme Court ruled that a person who is being interrogated by the police cannot just remain silent in order to invoke his Fifth Amendment privilege against self-incrimination, he must actually invoke the privilege before he can obtain its benefits. In Salinas v. Texas the court, split 5-4 along the traditional ideological lines we’ve come to expect, ruled that because a defendant merely remained silent when asked by Texas deputies to explain certain circumstances surrounding a murder he was being investigated for, a prosecutor could use that silence in his summation as evidence of the defendant’s guilt.
The case is relatively straightforward and a presents a fact pattern that will ring very familiar to criminal justice litigators: The police were investigating the 1992 murder of two brothers, Juan and Hector Garza, in Houston. Among the evidence the police found were discarded shotgun shells.The police asked Genovevo Salinas,to come to the precinct as a witness because he was said to have attended a party at the Garzas’ apartment. Mr. Salinas voluntarily and without a lawyer walked into the police station. Mr. Salinas answered questions for almost an hour but would not say anything when questioned if a shotgun the police had taken from his home would match the recovered shells. At the suppression hearing, the police testified that Mr. Salinas was “free to leave” at anytime up to the point of his arrest. At trial, the prosecutor commented on Mr. Salinas’s silence about the shells. “An innocent person,” the prosecutor told the jury, “is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. He didn’t say, ‘No, it’s not going to match up.’ ”
Mr. Salinas was convicted and sentenced to 20 years in prison. In deciding that this comment upon his remaining silent did not violate Mr. Salinas’ Fifth Amendment privilege against self-incrimination, the majority took a divergent and twisted path. Three of the justices, Alito, Roberts and Kennedy ruled that it does not present a burden upon poor, uneducated potential defendants because “virtually every schoolboy is familiar with the content, if not the language of the Fifth Amendment.” The court added that in any event, the Fifth Amendment does not give a defendant a the right to remain silent:
But 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.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.
I wonder what “virtually every schoolboy” would answer if we asked them if the Fifth Amendment gave a citizen the right to remain silent? Of course they would believe that it did. And that is because it is the first line in the rights read by almost every police department in the country. The record does not show what the Texas deputies would have read Mr. Salinas had he been read his rights, but I venture to guess it would have included being advised of his right to remain silent.
The other two in the majority, Justices Scalia and Thomas (or Frick and Frack as they are known in jurisprudence circles) also relied heavily on the actual text of the Fifth Amendment which reads in pertinent part: “No person . . . shall be compelled in any criminal case to be a witness against himself.” So Thomas (who wrote the opinion) says resolving this case is easy: Since Salinas was not compelled to testify against himself and since a prosecutor mentioning Salinas’ silence is not “being compelled to testify against himself” the Fifth Amendment does not apply. He again goes back to his beloved Founding Fathers in support of this proposition: “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.” That at the time of the founding, Africans were enslaved and women could not hold property must therefore mean that those were also Constitutional.
The Thomas/Scalia opinion also seeks to overturn 40 plus years of Supreme Court jurisprudence which has held that the Fifth Amendment’s privileges also include the right to not have a prosecutor comment upon the right to remain silent. That issued was decide by the Warren Court in 1965 in Griffin V. California and is firmly embedded in criminal defense practice. In fact Griffin was decided before Miranda v. Arizona. Thomas and Scalia, however, believe Griffin and its progeny should be reversed because it has an “indefensible foundation” – meaning it conflicts with the actual text of the Constitution.
The dissent written by Justice Breyer and joined in by Justices Kagan, Sotomayor and Ginsburg, relied on common sense as much as it did on precedent in deciding that what happened in Texas violated Mr. Salinas’ Fifth Amendment rights. In first dealing with the invocation issue, the dissent stated that the cases cited by the plurality are different than the Salinas case and are mostly examples where the defendant’s silence could not automatically be viewed as remaining silent to avoid incrimination (like failing to report an incident where the defendant was alleging he acted in self-defense). The dissent then went on to add that because of the “constitutional importance of applying the Fifth Amendment to those who seek its protection” there should be no hard and fast rule on how, when and where a defendant invokes his Fifth Amendment privilege: “It is consequently not surprising that this Court, more than half a century ago, explained that no ritualistic formula is necessary in order to invoke the privilege” and that an “individual,[can] as part of his decision to remain silent, [invoke] the Fifth Amendment explicitly or implicitly, through words, through deeds, or through reference to surrounding circumstances.” Common sense: Its obvious that Salinas did not answer the question about the shotgun because it might incriminate him. That should count as invocation of his right to do so.
On the issue of the prosecution commenting about Mr. Salinas decision, the dissent relies of course on Griffin and the many cases following it since its inception. That’s called stare decisis. Its how court are supposed to act – by following precedent that is directly on point on the same issue. Even the three who signed onto the Alito opinion knew that which is why they had to go the “He didn’t invoke it” route to send Mr. Salinas to the electric chair. They make no mention and undertake no analysis of the prosecutor’s comments.
But again the dissent also brings in some good old-fashioned common sense to the equation in deciding that a prosecutor should not be allowed to comment on the defendant’s silence:
“Particularly in the context of police interrogation, a contrary rule would undermine the basic protection that the Fifth Amendment provides.”
What good is the Fifth Amendment’s protection if a prosecutor can comment on it in summation? It loses all value if the State can argue that your silence equates with guilt. It is important to remember that the Fifth Amendment is intended to protect the innocent not merely provide shelter to the guilty. The general perception is that someone taking the Fifth is guilty or has something to hide. But as a unanimous US Supreme stated in 2001 in Ohio v. Reiner (which contained Scalia, Thomas, Rehnquist and O’Connor, hardly flaming liberals) one of the Amendment’s “basic functions … is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.” The Court went on to add that “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”
I know what you’re thinking: How can truthful answers from an innocent person incriminate that person? The answer lies in the meaning of “incriminate”; it does not mean to prove one guilty as most folks think. Here is the Merriam-Webster Dictionary definition of the term:
“Main Entry: self–in·crim·i·na·tion
: incrimination of oneself; specifically: the giving of testimony which will likely subject one to criminal prosecution”
(emphasis added by me).
So that it is an innocent person who might be wrongfully prosecuted through his own testimony (or in this case through his SILENCE) that the Amendment tries to protect; not a criminal with something to hide. In fact, the Supreme Court views very expansive protection under the Fifth. In Hoffman v. United States, the Court held that The Fifth does not protect just potential answers to questions that may be enough to support a conviction (“I shot him”, for example) but in fact “embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.” That’s the ticket: the testimony need only furnish a link needed not to convict but merely to prosecute the potential defendant.
The danger in this decision is that unlike Vegas, what happens in Texas does not stay in Texas. Lawyers across the country are contacted all the time by people who have in turn been contacted by the police over an incident. The police will tell the client that he is just wanted to answer “a few questions.” The client will then be concerned, when you tell him that he should not answer any questions, that it will “make him look guilty.” This is when a defense lawyer then explains that it does not matter what the police think. If they have enough evidence to make an arrest they will do so; if they don’t, then they won’t. Your refusal to answer questions will not change any of that. But now, if a defendant instead shows up on his own to the precinct and decides to remain silent, the State will be able to comment on his refusal to answer questions (not in NY where the State Constitution generally grants more rights than the Federal one, but in many States). That is a dangerous reversal of Fifth Amendment jurisprudence.
It came down to the old argument between “strict textualists” and those judges who believe that the Constitution is a living document that must make room for a changing and evolving society. No to mention common sense.