In a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent. The prosecutors used the silence of Genovevo Salinas to convict him of a 1992 murder. Because this was a non-custodial interview, the Court ruled that the prosecutors could use his silence even though citizens are allowed to refuse to speak with police. It is of little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers.
The case began on the morning of December 18, 1992 when two brothers were shot and killed in their Houston home. A neighbor told police that someone fled in a dark-colored car. Police recovered six shotgun shell casings at the scene. Police inteviewed Salinas who was a guest at a party that the victims hosted the night before they were killed. He owned a dark blue car. While this was a noncustodial interview and Salinas answered questions by the police, he stopped answering when a police officer asked whether his shotgun “would match the shells recovered at the scene of the murder.” The record states that, rather than answering “petitioner ‘[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched hishands in his lap, [and] began to tighten up.'” Notably, there was insufficient evidence to charge him with the crime. However, a statement later by another man (who said that Salinas admitted to the killings) led to the charge.
Salinas did not testify at trial, so prosecutors used his silence against him.
In 1976, in Doyle v. Ohio, the Court held that the prosecution may not comment on a suspect’s silence when he was under arrest and had been given Miranda warning. Here Salinas was using his right to remain silent that belongs to every citizen. However, because the police did not move to arrest him, the prosecutors are allowed to achieve the prejudicial impact addressed in Doyle.
The prosecutors also served to undermine the right not to take the stand. In Griffin v. California, the Court ruled that prosecutors could not comment on an individual’s decision not to take the stand and testify. Yet, here the prosecutors succeeded in magnifying the impact of this failure to testify by directing the attention of the jury to his decision to remain silent in the pre-custodial interview.
Of course, now the police need only to ask questions before putting some into custody to use their silence against them. What is particularly troublesome is how subjective this evidence is. To use the silence and demeanor of a suspect on this question is highly prejudicial and equally unreliable. Yet, now the refusal to answer questions (which is your right) can now be used against you. You can imagine how this new rule can be used any time someone wants to speak with a lawyer or a family member. Police can now recount how they did not assist them or volunteer information.
Citizens will now be able to have protected silence only after being placed in custody. Of course you had that right before that point, but silence would now be incriminating. That gives police every incentive to delay custody — an incentive that already exists due to other rules like Miranda.
In his dissent, Justice Breyer stressed the danger:
the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence. That need is also supported by the absence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or whether to grant immunity, see Kastigar, 406 U. S., at 448. Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of theprivilege.” Quinn, supra, at 164. That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor.
Unfortunately, my prediction that Alito would show an overwhelming bias in favor of police powers has been realized. This ruling will likely open up an entire area of new prosecutorial arguments using silence as evidence of guilt. It is a major blow to the rights of citizens — and a telling addition to the troubling judicial legacy of Alito.
Ironically, I was at CNN in case of a “major” ruling and was telling producers why the media has missed this “sleeper” case which will have sweeping impact on citizens in their relation to police. In my view, it was one of the most significant rulings of the term. (Of course, given the result, it was “significant” in a negative way — the way that the Hindenburg was a “significant” moment for airship travel).
Here is the decision: 12-246_1p24
This suggestion is not offered as legal advice but as rhetorical advice:
Speak in non-responsive gibberish.
You aren’t silent but you reveal nothing of value.
Cop: Where were you at eight o’clock on the twenty-first?
You: Banana axe mangrove thrush thrush hootenanny.
Cop: Are you trying to give me the run around?
You: The bells, the bells! Honestly, apricots don’t make a good industrial lubricant.
Cop: Answer my questions!
You: I am. Hippopotamus simplex or fugazi?
I’m betting they’d soon get the idea you aren’t going to talk to them about what they want to talk about or you’d be getting Mirandized shortly.
Darren, right, that’s the question isn’t it. An exercise of ones rights to silence, or probably immediately requesting a lawyer, is now if not indicative of guilt, certainly prejudicial regarding one’s innocence. The concept of ‘If s/he’s not guilty why wouldn’t she talk to the police’ is fair game as an argument or conclusion to bring into the case, as if one had no right to silence to begin with. What is the best approach to take?
So what is the workaround the citizen can use when faced with this situation?
The police and prosecutors will use whatever they wish against the proles and the high court will change the law to accommodate it, It’s back to business as usual for SCOTUS.
***
Texas Mother Arrested For Asking To See Warrant For Her Son
“Police in Slaton, Texas, reportedly arrested a woman for asking to see a warrant when they came to her house to bust her son.
“I told him, ‘I will release my son to you upon viewing those orders.’ Those were exactly my words,” the woman said. “He said, ‘This is how you want to play?’ He took two steps back, turned around to the officer and said, ‘Take her.’ They turned me around, handcuffed me and took me in.”
The complainant was aware that police were coming for her 11-year-old son and just wanted to see that they had a warrant. Apparently the warrant did not exist. The end result was that the woman spent the night behind bars and her son remained at home, My Fox Lubbock reported.” continues
http://www.opposingviews.com/i/society/crime/texas-mother-arrested-asking-see-warrant-her-son
“What are they smoking?”
I don’t know, ST, but I sure as Hell don’t want any of it.
What mespo said.
‘You have a right to remain silent – *but only* from the time that we formally tell you about that right.’
One could apply that logic to any ‘right’ that people think they have.
What are they smoking?
So, now your miranda rights only exist after given to you by the police. They don’t exist before. Do US citizens have any rights before a cop gives them to you?
Nuts! Just nuts!
So, if I were to say to the police, if they were interviewing me in a non-custodial fashion, that I am exercising my 5th, would that prevent them from being able to use my silence against me? If I have my lawyer with me and he tells the cops I am exercising the 5th, would that be ok?
What planet are these judges from anyway?
And David, I would love to know the answer to that question too.
“While this was a noncustodial interview and Salinas answered questions by the police, he stopped answering when a police officer asked whether his shotgun “would match the shells recovered at the scene of the murder.”
**********************
I think we’ve got an equal protection problem. We lawyers all know about Miranda from no better governmental actor than the justice who wrote it. Can they use our pre-arrest silence against us? Probably not. How about all those watchers of Dragnet or Adam-12 or any other police show? Think Jack Webb isn’t a reliable source?
If you’ve lived under a rock all your life or are poorly educated you get popped; if not you go free. What a country!
By the by, why would any person suspected of anything talk to police in a non-custodial situation in the first place?
Will this hold true for Corporations.??
Yeesuz,
No one said cops reports could be entered, but they darn sure use them to “refresh their recollection” all the time while testifying.
I would think if you knew that they can write whatever they want and jurors believe them. We want to believe them, we NEED to believe that they are truthful, as Joe Friday used to say “Just the facts Mam.” If you read the opinion, the cop described the acts as if they were saying that the man was evidencing guilt by his actions. There are many reasons people do what they do. Not just guilt. Maybe wanting to cover for his brother, his friend. Doesnt make em guilty
With so many unsolved crimes in the US, the Courts believe this will help lower ‘the numbers’? I am wondering how a prosecutor will use a person’s silence? In his/hers closing arguments? Or as another form of evidence? How would a defense attorney circumvent or circumnavigate ‘a person’s silence as evidence of his/hers guilt’? Did the Supreme Court refer to the lower courts as how to implement or enforce this decision (sometimes they do, in certain cases)?
I guess the Miranda Rights have to be revised? ‘You don’t have the right to remain silence, because we can still use your silence against you in the court of law’?
My experiences show that the First, Fourth and Fifth amendments are dead. I was imprisoned by DoJ according to them because of what I filed in court in a third party lawsuit, documents that I verified under penalty of perjury but was not charged criminally for. I was imprisoned by DoJ for 5 months and they claimed that a bench warrant doesn’t require an oath or affirmation. I lost my liberty and my property without due process of law.
This is very scary, since the cops already have great latitude in choosing when to read the Miranda rights.
…and people say that the Supreme Court is the sole defense of our rights? What a joke but Im not surprised at this anymore
Gee 5-4, and who the 5 were vs who the 4 were. Nothing to see here folks.
Police reports can’t be entered into evidence.
I think that you might get around this by asking the cops if you have a right not to say anything. Then they will be forced to admit that you have that right, and thus any silence will be covered under law.
The frightening potential that this decision opens up scares me. Now the police will do all of their interrogating in non-custodial situations. They will then become psychologists by putting their subjective bias into their police report.