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.
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.
Continue reading OK to Comment on Suspect's Nonanswer During Voluntary Interview.