A Setback For Self-Incrimination

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Friday, June 21, 2013

Most of you have watched it happen on television, in one of the seemingly endless procedurals – after an individual is arrested for a crime or brought in for questioning, the individual receives Miranda warnings. One of those rights from the warnings is the right to remain silent, a right that far too many criminal defendants do not exercise to their own peril.

If a defendant, after receiving Miranda warnings, voluntarily chooses to speak, any of those statements may be used against him at trial. If the defendant, in custody, makes statements before receiving his Miranda warnings, the government cannot use those statements in its case-in-chief against the defendant because Miranda held that statements obtained without advising a person of the right to remain silent renders the statement involuntary and unknowing – before a person can waive his constitutional right to remain silent and incriminate himself, he must know those rights in the first place.

What happens if a defendant remains silent in police questioning? Can his silence be used against him? After receiving Miranda warnings, if a defendant chooses not to speak, the prosecutor cannot comment on that silence at trial, as that would penalize the defendant for exercising his right against self-incrimination. But what about before he receives Miranda warnings? In Salinas v. Texas, the Supreme Court originally granted cert to decide whether in fact a prosecutor could comment on pre-custodial silence. However, the Court ducked that issue and instead held, by a vote of 5-4, that if a defendant does not expressly invoke his right to remain silent before receiving Miranda warnings, any of his statements may be used against him, including those he does not make – in other words, his silence.

The defendant answered several questions from the police until they asked him whether the shotgun shells recovered from the crime scene would match his shotgun, at which point the defendant simply went mute. He did not say, “I hereby claim my Fifth Amendment right against self-incrimination,” he just chose not to speak, perhaps because he knew his words would incriminate him. So, by exercising his Fifth Amendment right by staying silent and not incriminating himself, he ended up penalized at trial when the court allowed the prosecutor to comment to the jury that an innocent person would have answered the question rather than remain silent.

It would seem that this was an obvious violation of the Fifth Amendment, but apparently only obvious to four members of the Supreme Court. Four members would have held that any comment on silence, in custody or not in custody, violates the essence of the right against self-incrimination. Five members, however, reached a different holding. Two Justices – Scalia and Thomas – would find that commenting on silence at any time does not violate the Fifth Amendment. Three other Justices – Alito, Kennedy and Roberts – did not reach that issue because they believed that the defendant never invoked his Fifth Amendment right because he, well, just remained silent, like the Fifth Amendment allows. These three Justices carried the day (because Scalia and Thomas joined in the result), so now in order to truly claim silence, a criminal defendant must speak, and do so expressly by invoking the Fifth Amendment.

This bizarre holding follows on the heels of a decision three years ago where the Court held, also by a 5-4 vote, that a defendant who once invokes his right to remain silent must do so again and clearly if after hours of silence the defendant breaks that silence by giving several one word answers to questions only to again become mute. So, after today, if a defendant wants to exercise his right to remain silent at any stage of a criminal proceeding, in or out of custody, he is best advised to speak the magic words – I invoke my Fifth Amendment right against self-incrimination – if he wants to be sure he is protected.

The Fifth Amendment has served two principal purposes – (1) it cannot make a defendant take the stand and testify if he chooses not to do so, and (2) it allows a defendant to remain silent during custodial interrogations. To protect the first purpose, the Court has long held the prosecutor cannot comment on the failure to take the stand and testify – if the prosecutor could say to the jury only a guilty person refuses to testify on his behalf, the Fifth Amendment really would have no meaning whatsoever. To protect the second purpose, the Court has long held that the prosecutor cannot use coercive means to obtain confessions: all statements of an incriminating nature must have been made freely, knowingly and voluntarily. The Court has now severely limited the protection of the second purpose by penalizing silence. While coerced confessions still remain unconstitutional (though not as much as one would think), a prosecutor can now use pre-custodial silence against a defendant unless he clearly and expressly invokes his right to remain silent beyond simply remaining silent – a result completely at odds with the protection for not testifying at trial.

It seems that the Court could go two ways from this decision – it could address the issue of pre-custodial silence head on and find a fifth vote to continue to protect the right to remain silent, or it could find a fifth vote to eliminate that right entirely by allowing the prosecutor to penalize a defendant for not talking to the police.

The Salinas case represents a serious retreat in the protection of Fifth Amendment rights, one we hope the Court will reverse in the future, rather than entrench.

If you have questions about the Fifth Amendment and the right to remain silent, contact us – we can help.

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