On Wednesday April 17th, 2012 the
Supreme Court heard oral arguments in the case Salinas v. Texas.[1] This case will test an issue that has
deeply divided the circuits—whether, even before an arrest, an individual has
the right to remain silent during an interview with police, and suffer no legal
consequences from this action. So far, ten lower federal and state
courts have ruled that the Fifth Amendment does apply to silence before arrest,
and before police have the duty to give Miranda warnings, with about as many lower
courts ruling that it does not.
Salinas v.
Texas was decided by the Court of Criminal Appeals of Texas on April 25,
2012, and affirmed the Court of Appeals holding that the “Fifth Amendment right
against compelled self-incrimination does not apply to pre-arrest, pre-Miranda
silence used as substantive evidence of guilt in cases in cases in which a
defendant does not testify.”[2] The facts of this case are as
follows. In December 1992 police
found two homicide victims. An
investigation led to Mr. Salinas who voluntarily accompanied the officers to
the police station where he answered every question asked for an hour. Then, when asked whether the shotgun
shells found at the scene would match the shotgun found in his home, he
remained silent and “demonstrated signs of deception”, according to the
interrogating officer. The officer’s
continued asking questions, which Salinas answered. Salinas was held on outstanding traffic warrants until
ballistics showed the shotgun shells found at the scene had been fired from the
shotgun found at Salinas’ house, at which time he was held as a murder suspect.
However, the District Attorney’s
office declined charges without additional evidence and Salinas was released
when the hold expired. A witness later
came forward stating Salinas told him he committed the murder. Police attempted to arrest Salinas, but
they could not locate him. Salinas
evaded arrest for fifteen years.
His first trial, in which the State did not make use of his silence from
the initial interview, ended in a mistrial. At his second trial the State offered evidence of his
silence when he was questioned about the shotgun shells, which Mr. Salinas’
attorney objected to; however this objection was overruled and the silence was
deemed admissible. In this trial, Mr.
Salinas was found guilty of murder and sentenced to twenty years’ imprisonment
and a $5,000 fine.
Mr. Salinas appealed the admission of the
evidence of his silence to the Fourteenth Circuit Court of Appeals. The Court of Appeals noted that other
state and federal courts of appeals were divided on the issue but sided with
the holding that silence was admissible.
Salinas then appealed the Court of Appeals decision to the Criminal
Court of Appeals of Texas, who affirmed the holding of the Court of Appeals. The Criminal Court of Appeals stated
that the Fifth Amendment protection given to pre-trial silence varies according
to several factors: “(1) whether the defendant was in police custody; (2)
whether he was informed of his Miranda rights; and (3) whether evidence of such
silence is offered as substantive evidence of guilt or elicited from a
testifying defendant.”
The Supreme Court has reached decisions on some
issues relating to Fifth Amendment protection of silence. In Doyle
v. Ohio the Supreme Court held that a defendant’s right against compelled
self-incrimination is violated if the State is allowed to use post-arrest,
post-Miranda silence to impeach their testimony.[3] However, in Jenkins v. Anderson the Supreme Court held the defendant’s rights
are not violated when defendant choses to testify and is cross-examined about
post-arrest, pre-Miranda silence.[4] The issue here is whether pre-arrest,
pre-Miranda silence can be used against a non-testifying defendant. The Texas Court of Appeals stated that
the Fifth Amendment protects a defendant from compelled self-incrimination, and
that in pre-arrest, pre-Miranda circumstances the suspect’s interactions with
police are not compelled. Therefore,
the court held that the Fifth Amendment right against compulsory
self-incrimination is “simply irrelevant to a citizen’s decision to remain
silent when he is under no compulsion to speak.”
Salinas’ brief argues that there is compulsion
in Fifth Amendment terms when the State uses silence against an individual “because it leaves him no avenue to avoid
incriminating himself. If he speaks, his words can be used against him;
and if he refuses to speak, the prosecution can argue that his silence is
evidence of guilt.”[5] Additionally, Salinas argues that the
risk of wrongful conviction is just as high if pre-arrest silence is used
against the defendant as evidence of guilt. Furthermore, Salinas’ argues that compulsion has
nothing to do with custody, and the right to remain silent has been recognized
in many noncustodial settings like testifying before Congress or answering tax
questions from the IRS. Lastly, Salinas
points to the fact that his first trial, where little use was made of his
silence, ended in a mistrial, yet when special emphasis was put on his silence
during the second trial he was found guilty. He noted the fact that he could have been sentenced to life
in prison, but the jurors only asked for the twenty years the judge had imposed. Salinas’ argues for a simple
rule, “Once police initiate contact with a suspect, Fifth Amendment protection right
to remain silent kicks in.”
The State
of Texas’ brief argues that a simple refusal to answer is not the same as
invoking Fifth Amendment protection.[6] They also note that Salinas did not
claim he was in custody at the time, nor did he argue that he
had been coerced. They argue that
the encounter was voluntary, non-custodial, and had none of the attributes of
coercion that the Fifth Amendment protects against. Furthermore, they argue that precedent in Jenkins already held that “use of an
individual’s voluntary, non-custodial communication with police is not
compelled merely because of its potential use at trial.” Texas also argues that the reasoning
behind Griffin v. California, which banned
the use of silence in a trial setting, is to protect the “presumption of
innocence.” The right to a
presumption of innocence only applies at trial; therefore, they argue, this
rationale should not be expanded to the pre-trial setting.
The
federal government has also entered the argument on the side of the State of
Texas.[7] The federal government argues that the
right that is protected by the Fifth Amendment is the right not to be compelled
to testify against oneself at trial and that the issue in Salinas is whether Griffin
should be expanded beyond the trial setting. The federal government argues that it should not and that in
order to gain the privilege of Fifth Amendment protection you must invoke that
privilege, and silence does not do that.
The federal government argues that if mere silence is enough to invoke
Fifth Amendment privilege then it would protect a great deal of conduct that is
not related to the Fifth Amendment such as a moment of uncertainty about what a
question meant. Additionally, the federal
government argues that a suspect who voluntarily goes with the police and
answers questions, “unlike a defendant who refuses to take the stand his at
trial, or a suspect who refuses to answer any police questions, the suspect
takes actions that are inconsistent with any intention to exercise this (Fifth
Amendment) privilege.”
The Court
here has the opportunity to set new precedent and extend the rights of criminal
suspects in pre-arrest situations.
It will be interesting to see whether they handle the case as a simple
extension of precedent or delve deeper into the meaning of silence, compulsion,
or custody.
Nicole Irwin
Blogger, Criminal Law Brief
[1] http://www.scotusblog.com/2013/04/argument-preview-a-penalty-for-silence/#more-162352
[2]http://www2.bloomberglaw.com/desktop/public/document/Salinas_v_State_369_SW3d_176_Tex_Crim_App_2012_Court_Opinion
[3]http://scholar.google.com/scholar_case?case=5257682512915945262&hl=en&as_sdt=2&as_vis=1&oi=scholarr
[4]http://scholar.google.com/scholar_case?case=429742037742868550&hl=en&as_sdt=2&as_vis=1&oi=scholarr
[5]http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-246_pet.authcheckdam.pdf
[6]http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-246_resp.authcheckdam.pdf
[7]http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-246_amicus_us.authcheckdam.pdf
Yes, I agree with lower courts that the right should be extended to pre-Miranda stage. In the recent Boston blast case, the suspect has not been read Miranda because there is a public safety issue involved. In that case, the police does not need to read to the suspect the Miranda rule.
ReplyDeleteIf you are innocent, then say as much. It's not that hard not to say something stupid. Refusing to say anything just naturally makes you look guilty. The only folks I know of that will tell you differently are criminal lawyers in Raleigh NC, where the judicial system tends to flow a little better.
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ReplyDeleteThank for sharing.
Aaron Andrew @ GrigsByLagGroup