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The Mythical Right to Remain Silent

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The Constitution of the United States guarantees a right to remain silent, right?  Guess again.  What the Fifth Amendment actually says is, "No person ... shall be compelled in any criminal case to be a witness against himself ...."  That is not exactly the same thing.

Emily Green has this story at NPR on a recent decision by the California Supreme Court on the use of silence as evidence of guilt, People v. Tom, and its predecessor case in the U.S. Supreme Court, Salinas v. Texas (2013).  The story has sound bites from several people, including yours truly, but the issue is more complex than can be covered in a brief story.
I wrote an amicus brief for CJLF in Salinas.  In that case the defendant, not under arrest, voluntarily spoke to police in a lengthy interview, but he made no verbal response when asked one particular incriminating question he wasn't expecting.  Because he hadn't been arrested at that point, the Supreme Court's Miranda rule (fabricated out of blue sky, not in the Constitution) did not apply.  No warnings or express waiver was necessary.  I asked the Court to go back to basics, forget about the mythical right to silence, and ask in the real words of the real Constitution if he had been compelled to be a witness against himself by the use of his nonanswer to one question in a voluntary interview.  The Court has reexamined what it means to be a "witness" in Sixth Amendment cases, and it is high time it does so in Fifth Amendment cases also.

Disappointingly, Justice Alito's plurality opinion is framed in terms of invocation of privilege.  If you want to invoke the Fifth Amendment privilege outside of trial or custodial interrogation, you have to say so.  That is not a new concept.  It has long been established that if you want to invoke the privilege in a civil trial or a congressional hearing, for example, you have to say so.  Even so, the idea that you have to speak to invoke your "right to remain silent" has been the subject of considerable derision, and I would prefer that the plurality had not decided the case that way.

Justice Thomas's concurring opinion, joined by Justice Scalia, does go back to basics and proposes a step bolder than the one I suggested.  He would overrule Griffin v. California and hold that use of failure to testify does not constitute compulsion within the meaning of the Fifth Amendment.  Nice try, but there isn't the proverbial snowball's chance of getting five votes for that.

The California Supreme Court applied Salinas in Tom, a vehicular manslaughter case in which the defendant's failure to inquire about the people he had just rammed was introduced as evidence of consciousness of guilt.  Frankly, I find that inference quite weak, but that wasn't the issue.  The court did correctly apply Salinas, whatever that decision's faults.

We are stuck with Miranda as a precedent.  The Supreme Court considered whether to overrule it some years ago and decided not to, not because it was right but because it has become ingrained in the system.  Okay, but we should not expand it a fraction of an inch beyond what precedent requires.  In all other cases, we should get back to what the Constitution actually says.

Speaking of TV cops, I'll invoke Lt. Colombo.  Just one more thing.  The NPR story begins,

"You have the right to remain silent."

Any devotee of TV crime dramas or police procedural shows hears the phrase regularly. But new court decisions in recent years have chipped away at that principle.

Actually, that may depend on which channel you are watching.  If you are watching BBC America or even NPR's sister television network PBS, you might hear:

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.

That would be much better.  See Lauren Altdoerffer, Miranda with an English Accent, 10 Engage (3) 35 (2009).

1 Comment

Given the Brady rule and the tailoring of defenses to what the prosecution knows, the English rule makes a ton of sense. It certainly would have made some difference in the Troy Davis fiasco. Mr. Davis came up with the Sylvester did it story years after the fact, something which did not garner anywhere close to the media coverage it should have.

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