Goodbye 5th Amendment? Supremes rule silence can be used in court...sometimes

DALLAS, June 17, 2013 – In a 5-4 decision regarding Salinas v. Texas, the U.S. Supreme Court ruled that a potential defendant’s silence can be used against them during police interviews prior to arrest and reading of Miranda rights. In 1992, Genovevo Salinas voluntarily entered a Houston police station to discuss the murder of two brothers, Juan and Hector Garza. He complied with officer’s questions, but when asked whether shotgun casings would match his firearm, he fell silent. Texas prosecutors convinced jurors that his silence was an admission of guilt.

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During the trial, Sgt. C.E. Elliott claims Salinas became nervous and withdrawn an hour into the interview. “He [Salinas] looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.” The behavior raised Elliot’s suspicions; Salinas was taken into custody and read his Miranda rights.

Salinas was found guilty in the shooting death of two brothers and was sentenced to 21-years, but his lawyer claims the Texas court should have omitted his silence as evidence of possible guilty because the Fifth Amendment provides protection against self-incrimination. The State of Texas defended the evidence because Salinas’s silence was taken under voluntary conditions.

The Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” The high court long ago determined that criminal suspects in police custody have a Fifth Amendment right to remain silent. Suspects are read their Miranda warnings after an arrest to inform them of their right to remain silent so as to not provide evidence against oneself at trial.

However, it was unclear whether the right applies to interactions with law enforcement prior to an actual arrest.

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State and federal courts were sharply divided on the matter. Ten courts have upheld that the Fifth Amendment right to remain silent during police questioning covers pre-arrest interviews. Nine courts ruled the protection only extends to post-Miranda warning police interactions.

“The need to resolve this conflict is manifest,” Stanford Law Professor Jeffrey Fisher wrote in his brief on behalf of Salinas. “There can be no serious dispute that the question whether the Fifth Amendment protects pre-arrest, pre-Miranda silence in the face of law enforcement questioning is extremely important.”

By this ruling, the justices settled that the Fifth Amendment does not apply to silence before arrest unless invoked. Associate Justices Samuel Alito and Anthony Kennedy concluded that Salinas’ Fifth Amendment defense is unacceptable because he did not specifically declare the privilege to remain silent during questioning.

Even if the suspect does not know or understand the law, prosecutors may use the pre-arrest silence of a witness or defendant against them in the court of law.

As summarized by Lyle Denniston of SCOTUS Blog, “Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.  If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.”

Associate Justice Stephen G. Breyer issued the dissention and was joined by Associate Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. The Justices argued courts must evaluate all specific circumstances of an individual’s interactions with police to determine if a person’s silence was protected, not whether or not the individual says, “Fifth Amendment”.

Justice Breyer wrote, “I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.”

Critics assert that the ability for law enforcement to build a criminal case on pre-arrest silence gives police incentive to delay reading Miranda warnings. They also charge that rulings of this nature further degrade the spirit of the Fifth Amendment, which was designed to protect citizens against aggressive, manipulative police actions.

The full court ruling can be read here.

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