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
“To my brother and sister barristers: focus grasshopper and continue to fight the good fight!”
Copy that, Frank.
This article misconstrues the situation. Interestingly, the link to the case at issue does not work. An actual working link is at http://www.supremecourt.gov/opinions/12pdf/12-246_1p24.pdf .
In essence, the situation comes down to:
(1) The guy initially answered some questions voluntarily, but then stopped answering and began acting suspicious when asked a hard, pointed question; and
(2) the cops were not given affirmative notice of the reason for the subsequent silence — the guy just fell silent all the sudden without informing the cops that his reason for doing so was that he was invoking his right against self-incrimination.
In essence, if you specifically tell them you’re invoking the 5th amendment, then they cannot use it against you. The first 3 pages of the actual case at issue make this clear.
The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
ALITO, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. THOMAS, J.,
filed an opinion concurring in the judgment, in which SCALIA, J., joined.
BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR,
and KAGAN, JJ., joined.
As I approach my 37th year practicing criminal law, this, now constant, chipping away of the Bill of Rights by the Supreme Court is not only expected but shockingly, does not draw an outrage by the citizens of this country. This is another sad day in our country and we criminal defense litigators( already handicapped by the opinions over the last 40 years) have another hurdle to overcome in protecting our clients from the law enforcement powers blessed by the courts. It saddens me. To my brother and sister barristers: focus grasshopper and continue to fight the good fight!
The cops will start running seminars this next week regarding how to delay the Miranda warning and perhaps ramp up the video of the interrogations.
Goodbye Carmen Miranda.
We have much damage to our rights to undo soon.
You can see the masses gathering already. It will not be much longer.
It is time we replace the members of the Supreme Court as well
I though the Miranda warning was to insure that people were aware of the right to remain silent and to have an attorney. Now it seems, those rights have disappeared until the cops decide to grant them. As I recall, even if you choose to waive the right to remain silent, you can withdraw the waiver at any time and not speak. Guess the new prison/slave labor force will be expanding again.
listening to the cardinals claiming territory. 🙂
Gene:
Machine-wrapped, with butter.
NOTE: Original link provided has been fixed.
NOTE: The link provided in this article is to a corrupted file you may not be able to open.
The following link is to a clean .pdf of the decision:
http://www.supremecourt.gov/opinions/12pdf/12-246_1p24.pdf
Randy White,
You used one of the four magic words that will get you snagged in the moderation filter. I made a minor edit for you and approved it.
Reblogged this on Randy C White and commented:
This shows you how f**ked up the conservative members of SCOTUS really are. The “Miranda Rights” are in the Constitution. They exist PRIOR to a suspect being Mirandized. The SOLE purpose of reading a suspect their rights is to insure they are AWARE of those rights…they are NOT magically given to a suspect once the rights are read.
To expand on what I just posted, you have to point out to the police that you have a right to remain silent and that remaining silent cannot be used against you. In other words, Miranda rights apply once you say them, if the police don’t. It’s ridiculous, but that seems to now be the case. The WP article also points out that the suspect had answered some questions, and this was taken to mean that he was not invoking his right to remain silent. So, it sounds like the best course is to answer no questions at all, except to state that you are invoking your right to be silent.
For those asking what a suspect should do, Alito states it clearly in the Washington Post article on this ruling: ‘Salinas’ ”Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Justice Samuel Alito said. “It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection ‘must claim it.’”’
Maybe some of these critics of the world’s greatest legal system would be happier if our system was more like the ones in Roosia, China, or N. Korea.
I surmise that, if I ever get so desperate as to need a suicide by police officer end of life experience, perhaps the following would work:
0. I find that, according to my Miranda rights, I need to read my rights to myself, so that my rights will have been read to me.
1. I have the right to remain silent.
2. Anhyting I say or do can and wil be used against me in a court of law.
3. Because my only possible adversary is the adversarial system, I have no actual right to an attorney.
4. I cannot afford an attorney and none will be provided for me.
5. I do not understand these rights as I have just read them to myself.
6. With these rights not in mind, I choose to not speak with any law enforcement person.
Thank You, just another nail in Main Streets coffin.