The Price of Silence: Supreme Court Rules That Pre-Miranda Silence Can Be Used Against Defendant To Prove Guilt

225px-010_alitoIn 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

118 thoughts on “The Price of Silence: Supreme Court Rules That Pre-Miranda Silence Can Be Used Against Defendant To Prove Guilt”

    Was defendant within the Federal Zone?
    Was the officers Federal or State?
    Was the socalled crime civil or Admirality?
    Was the Defendant a National(State citizen) or United States Citizen(born in the Federal Zone?
    These questions and many more are the kingpin questions as to the authority of the Federalistas to prosecute the defendant or not?
    One more statement. Did the defendant have a lawyer(officer of the court) or council at bar? Government schools do not teach civics anymore. Wonder why?

  2. All you have to do is invoke your right to remain silent and they can’t use that against yo. If you don’t invoke, then they can, regardless this case is just an opinion, hence that is why they call them opinions

  3. “the FACT that WE are the enemy.”

    Of course we are the enemy. We have a tyrant in the White House and his lackeys and minions running everything, with the media acting as his lap-dogs… Did you ever doubt that we are the enemy? Why do you think they want us unarmed???

  4. Since this is applies during a “non-custodial” interview, meaning you are being suspected without compelling evidence and not technically under arrest, a person in this situation might be wise to respond to the officer’s first question with the query: “Am I being detained or am I free to go?”
    If allowed to leave, then he should IMMEDIATELY do so and if not he should formally invoke his 5th amendment rights with an appropriate declaration.
    I AM NOT an attorney, and my opinion does not constitute specific legal advice. Best of luck to all innocent individuals who fall into such a situation. God be with you because the High Court certainly is not.

  5. Ignorance of a law doesn’t matter, but ignorance of rights does? yeah that totally makes sense, you only have rights after a specific person in authority tells you about it.

  6. As I recall, when the Geneva Convention was agreed upon, enemy soldiers were only required to provide three pieces of information.
    This SCOTUS decision has simply solidified the FACT that WE are the enemy.
    When speaking to ‘law enforcment’, only provide those three things. Anything more shall be construed as ‘collaboration’.
    I THINK that this is REVENGE for the former head of the IRS’s testimony, and the call for her to be brought to trial for her statements (and the misconstuing of her statements in invoking the 5th).
    GEE, ya THINK?

  7. Julia Esq.,

    “This is still SCRAY as well. So much can be interpenetrated from silence alone.”

    Not to mention that argumentum e silentio (argument from silence) is a logical fallacy in its own right. Conclusions based on the absence of evidence, rather than the existence of evidence, are subject to all sorts of bias and error. This holding is inherently irrational because it is inherently illogical. Not to mention the whole “flies in the face of precedent” argument from Breyer’s dissent.

  8. “How many people have been arrested who were not guilty ”

    It would take me a while to dig up the clipping. But recently a man was exonerated and released after more than a decade in prison.

    Suspicion attached to him when he asked an officer what was going on. He was in the area of a crime purely by accident.

    Fortunately that kind of thing does not happen often. But occasionally innocent people are convicted. Many times conviction of the innocent results from issues such as bad science and erroneous eye witness accounts.

    But sometimes the process starts when an innocent bystander asks a reasonable question or when someone gives information in the belief they are being questioned as a witness.

    All citizens should understand that it is serious business anytime an LEO asks questions relating to a crime.

    Being innocent is simply not enough to guarantee the system works as it should.

    In addition there are numerous examples of people being charged for giving false answers to federal investigators.

    Leaving aside the question regarding guild or innocent of the underlying crime, it seems likely that advice of an attorney would have prevented these individuals from answering in a way that would result in a charge.

    The lesson is simple. If you are questioned by law enforcement about a crime get advice from an attorney before you answer.

    1. Problem with getting an attorney first is many folks cannot afford an attorney. And it seems that the poor and disenfranchised tend to get caught up more often in these scenarios.

Comments are closed.