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Supreme Court Takes Up "Right to Remain Silent"

In the famous (or notorious) case of Miranda v. Arizona, the Supreme Court required police officers to warn arrestees before questioning, "You have the right to remain silent."  Actually, the Constitution says a defendant in a criminal case has a right not be compelled to be a witness against himself, which is not the same thing.  Today, the Court took up the case of Salinas v. Texas, No. 12-246.  The Court of Criminal Appeals opinion is here, and it begins:

The appellant was convicted of murder. The Fourteenth Court of Appeals affirmed the conviction. We granted the appellant's petition for discretionary review on one ground: whether the Court of Appeals erred in 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 which a defendant does not testify. Holding that such silence is admissible, we will affirm the Court of Appeals's decision and uphold the appellant's conviction....

Houston police officers discovered two homicide victims on the morning of December 18, 1992. An investigation led to the appellant, and he voluntarily accompanied officers to the police station for questioning. For approximately one hour, the appellant answered every question asked. Then, when asked whether shotgun shells found at the crime scene would match a shotgun found at his home, the appellant remained silent, and, according to the interrogating officer, demonstrated signs of deception. A ballistics analysis later matched the shotgun with the casings left at the murder scene. Subsequent investigation led police to a witness who stated that the appellant had admitted murdering the victims. On March 4, 1993, the appellant was charged with murder, though police could not locate him at the time.

I think that is correct.  The Supreme Court decided in Dickerson that it would keep Miranda as a matter of precedent.  Even so, as an original matter, the decision was an extreme case of judicial overreaching, and it should not be extended, even by a fraction of an inch.  The applicability of Miranda has always depended on custody, there is no compelling reason to extend it to noncustodial interrogations, and the Court should not aggravate a dubiously legitimate exercise of judicial power by extending it to new territory.

The Court also took up a couple of federal cases on extortion law and application of sex offender registration requirements to old convictions.


Is this really a Miranda case? Or more along the lines of the prosecution not being able to comment on the silence of the accused. From the standpoint of the Constitution, the rule that the prosecution can't comment on the fact that the accused hasn't said a word in his defense is simply indefensible. It isn't compulsion for the prosecutor to comment.

But if we are going to have such a rule (i.e., that silence cannot be commented upon), does it make sense to have such a technical distinction? I get that the custodial/non-custodial distinction is important in many cases, but I don't get the sense that it is too important here--unless one thinks that silence in the face of a layperson's questioning/accusation (admissible) is distinguishable from police questioning.

In any event, cases like these show how silly some of SCOTUS' jurisprudence really is. It should be unquestioned that the silence is admissible. But since the "sporting" theory of justice seems to hold sway, we see too much silly refereeing. Handicapping is ok in golf, bowling, chess and other arenas, but in the criminal justice system, where not required by the Constitution, it's inappropriate.

Decencyevolves: If you have a right not to be compelled to make statements that inculpate you under the self-incrimination clause of the Fifth Amendment, how can your decision to refrain from making statements that inculpate you be substantive evidence of your guilt? Isn't that the rationale of Griffin v. California after all? And Griffin isn't an extension of Miranda. This isn't about Miranda's prophylactic warnings. Even without them, wouldn't this be problematic under Griffin? Do we want a system where someone's guilt could rest upon their refusal to testify, or to make comments to the police? Wold you feel comfortable with that? I'd prefer a system where the defendant's refusal to comment isn't part of the prosecution's case.

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