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OK to Comment on Suspect's Nonanswer During Voluntary Interview

The US Supreme Court today upheld, 3-2-4, a prosecutor's comment on the fact that a murder suspect failed to answer a single question during a voluntary interview.  He was not under arrest at the time, and the case had been litigated on the assumption he had not received Miranda warnings.  (He actually had, according to the state's brief, but apparently no one brought that to the attention of the trial court.)  The case is Salinas v. Texas, No. 12-246. CJLF's brief is here.

The plurality opinion by Justice Alito (joined by Chief Justice Roberts and Justice Kennedy) is based on the fact that the suspect did not expressly invoke his Fifth Amendment right.  In Berghuis v. Thompkins, decided three years ago, the Court held that a prolonged silence during most of an hours-long custodial interview did not invoke Miranda rights so as to require a cut-off of questioning, and thus the suspect's response to a single question was admissible.  This case is a mirror-image.  Salinas freely answered most questions but made no verbal response to the one most incriminating question.  The plurality extends, slightly, the express invocation requirement to cover this situation.

Justice Thomas, joined by Justice Scalia, concurs in the judgment on the broader ground that commenting on silence is not compulsion within the meaning of the Fifth Amendment, and Griffin v. California, 380 U.S. 609 (1965), forbidding comment on the defendant's failure to testify at trial, was wrongly decided.  There is zero chance of overruling Griffin with the current Court, but there is much to be said for not extending it.
Justice Breyer dissents, joined by Justices Ginsburg, Sotomayor, and Kagan.  He goes through Fifth Amendment precedents in analytical fashion and decides they should apply to exclude this evidence.  I was particularly struck by his next-to-last paragraph:

Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual's silence and surrounding circumstances an exercise of the Fifth Amendment's privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court's case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today's case is clearly: yes.
What's wrong with this picture?  The needs he considers are entirely on one side.  There is a reason that the goddess of justice is portrayed holding a double pan balance scale.  What about the need to punish Salinas for a double shotgun murder?  What about the need to get a violent thug off the street?  Don't those needs count at all?

The plurality understands that "[t]he privilege against self-incrimination 'is an exception to the general principle that the Government has the right to everyone's testimony.' "  The privilege must be respected within its proper scope, but it should not be expanded.  The Warren Court bloated the Fifth Amendment beyond recognition.  The changes we should be considering at this point are those reducing the bloat, not further expanding it.  This passage from the plurality opinion is encouraging:

But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself "; it does not establish an unqualified "right to remain silent." A witness' constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.
For almost half a century, the Miranda rule has required police to tell arrestees they have a right to remain silent, and that phrasing has become more widely known to the public than what the Fifth Amendment actually says.  It is good to see the Supreme Court moving back in the direction of the actual Constitution.

The plurality notes the due process rule of Doyle v. Ohio that if a suspect receives the promise of the Miranda warnings that he "has the right to remain silent," even though the Fifth Amendment doesn't actually say that, he can rely on "the warnings' implicit promise that any silence will not be used against him."  If this case had been litigated on the basis that Salinas actually did get the warnings, would it have come out differently?  Should police stop giving warnings to unarrested suspects "just to be safe" now?  We don't know yet.


I thought CJLF's "voluntary witness" argument was far better than the plurality's "express invocation" rule, as argued for by the SG.

I am convinced that if Salinas had expressly invoked, there would be at least four justices (Alito, Roberts, Scalia & Thomas) that would still allow the prosecution to use his silence (without reference to his invocation) as substantive evidence of guilt without violating the 5th's SI clause. Not sure about Kennedy.

Any thoughts on how this hypothetical would be decided by the Court, in light of Salinas:

Cops approach a murder suspect on the street and ask him, "Why did you murder your wife?" The suspect doesn't answer. He says nothing. He simply walks away, gets into his car and drives off.

Violation of due process to introduce the suspect's silence as substantive evidence of guilt?

The silence is probative (i.e., "relevant," as that term is defined in the California Evidence Code, section 210, since it has some tendency in reason to establish guilt, because, arguably, an innocent person would have at least responded with some sort of denial). Or would the Court establish a substantive due process constitutional standard of relevancy that requires more than a simple inference of guilt?

A refusal to speak to police at all ought not be admissible, in my view. If it is, then the dilemma that defendant's amici warned about really does exist. In addition, the probative value, while not quite zero, is minimal. To use the plurality's approach in your hypothetical, one would have to find that saying nothing at all constitutes invocation. That would probably be the result, but it would be a bit of a stretch.

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