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 is an amazing case, except for who voted for it and against it and who wrote the opinion. It is truly amazing that if I just keep my mouth shut, that silence is evidence of a crime. I would say keeping one’s mouth shut when questioned by the police is a good thing, not a crime. Holy crap.
Damned if you do, damned if you don’t. Wasn’t there a case out of Michigan where the defendant kept telling the police he had nothing to say and wanted a lawyer after he had been Mirandized, and scotus said that because he failed to remain SILENT, certain statements or responses during subsequent questioning were used to incriminate him?
One more question..
I had some notion that any questioning before the Miranda moment was not admissible in court – or that there would at least be difficulties in trying to use it.
What would I know?
So, the plan:
Cop: “How are you today?”
Me: “The Fifth! I wanna lawyer”
I should also carry a recording device.
Dirker: ” 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.’”’
If that is the case, then why bother with Mirandas at all? Just keep going unless the person claims their ‘rights’ without being prompted to do so.
Remember the fuss about Mirandizing the Boston brother?
The justification for delay in reading him his rights was that it gave investigators an opportunity to prevent some wider conspiracy or ticking bombs.
There was mention of a case where the suspect had hidden a gun somewhere in a grocery store. It was asserted that the requirement to Mirandize was trumped by the need to locate the gun and prevent a random discoverer from accidentally discharging the gun or using the gun in a crime.
In the case being discussed here, that sort of consideration does not appear to have been a factor.
The only evidence that convicted the guy appears to have been (1) the cops thought he seemed guilty and (2) some other guy asserted that he had overheard the guy admitting it somewhere sometime. That’s a very low bar.
One big WTF question from me…..
“He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. ”
He was then apparently asked if he thought the shells from the scene would match his gun.
Hello? Why not ask a ballistics expert? The gun and shells do not appear to have been used in evidence. I wonder why not.
Was it that the guy was considered to be of some general ‘low-life’ persuasion and therefore the procedures applicable to ‘relatively decent’ people did not apply – not even in court?
Well, if Clarence Thomas gave the position the thumbs-up, who are we to argue with his infallible authority? I’m sure that Gene and Darren, president and vice president, respectively, of the Clarence Thomas Fan Club, would agree.
Robert Torp, esq.
If enacted through the legislative process… Would the U.S. Supreme Court would find it unconstitutional?
Gene H.
1, June 17, 2013 at 10:56 pm
… What you say and don’t say can and will be used against you in a court of, laaaaaaw.
May I now, commit myself, your honor?
Echelon,
So my 5th Amendment only takes effect when a LEO says so?
I’m confused… What does a police state look like, then?
if this fly’s it going to be everyone from the top down.
Inherent Rights DENIED!
face it, the old “innocent until proven guilty” is long gone. with the new and improved “criminal justice system” you are a criminal. if you weren’t, you wouldn’t be there.
Robert, we are indeed witnessing the destruction of the Bill of Rights. However, this will be reversed very soon. The people have had enough. The time is coming very quickly.
Robert,
Where do I sign?
We need a constitutional amendment limiting the time a justice can serve on the supreme court. I would suggest 12 years. And they cannot serve in any capacity in a governmental position for life or practice law at the end of the 12 year term. By accepting an appointment to the high court the would agree to those terms. They would also receive a lifelong pension at the end of their term. Such an amendment would allow a turnover of the court so a terrible decision (or as with this court, a series of terible decisions) can be corrected in a decade rether than a lifetime.
Mr. Torp,
I must concur with the stipulation that mine are tears of anger at those in Washington – from all three branches of government – who were so stupid, overly ambitious and/or greedy to give bin Laden everything he wanted on a silver platter in their response to the over hyped “threat” of terrorism: the destruction of the rights and liberties our Founder intended to protect by forming a liberal democratic republican form of government rooted in natural law and employing only the best traditions protecting civilian rights from the English common law as our basis.
A pox upon them all.
I think we are seeing the begining of the end of American democracy and the beginings of the American police state. Makes me want to cry.
Actually, “Echelon” – which is a peculiar nom de plume in itself for someone defending Alito’s attack on civil liberties – that link was fixed hours ago.
Now would you kindly like to explain how rights, which are inherent and reserved by the terms of the 9th Amendment, can be subject to a condition of specific invocation without running afoul of the 14th Amendment’s Equal Protection Clause when the right itself exists without reserve in the specifically protective language of the 5th which clearly states and without reservation that “[n]o person shall be [. . .] compelled in any criminal case to be a witness against himself” regardless of whether they affirmatively assert the right or not? Despite precedent stating, as Breyer summarizes in the dissent, that “we have two sets of cases: One where express invocation of the Fifth Amendment was not required to tie one’s silence to its protections, and another where something like express invocation was required, because circumstances demanded some explanation for the silence (or the statements) in order to indicate that the Fifth Amendment was at issue.
There is also a third set of cases, cases that may well fit into the second category but where the Court has held that the Fifth Amendment both applies and does not require express invocation despite ambiguous circumstances. The Court in those cases has made clear that an individual,
when silent, need not expressly invoke the Fifth Amendment if there are ‘inherently compelling pressures’ not to do so. Miranda, 384 U. S., at 467.”?
That is do you care to explain it without resorting to tortured logic roughly analogous in quality to the piss poor logic and legal reasoning in decisions past like Buckley v. Valeo and the current court’s own Citizens United v. FEC and the same low quality reasoning exhibited in this case by Alito in this case?
Rights are not created by state fiat. That’s counter to the very foundations laid out by our Founders in the Constitution and rooted in the natural law tradition. They cannot be usurped so casually in favor of the state without it be called anything other than – and fairly so – tyranny.
Feel free to get your friend, Carnivore, to help you answer. If he’s not home, call your buddy PRISM.