Many of us know that, once you have been read your rights, you do not have to speak a word as anything you say is going to be used against you in court, but what happens when you haven’t been read your rights and you’re merely being questioned? The Supreme Court decided today 5-4 in Salinas v. Texas that, in order to invoke your rights, you had better speak up first.
Here’s what happened, that started Salinas v. Texas, according to Justice Samuel Alito, who wrote the majority opinion.
On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.
Petitioner’s interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. For most of the interview, petitioner answered the officer’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” petitioner declined to answer. Instead, petitioner “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” After a few moments of silence, the officer asked additional questions, which petitioner answered [citations omitted by me].
Genevevo Salinas’ silence was used against him in court. Unfortunately, the court sided with the prosecution.
“We have before us no allegation that petitioner’s failure to assert” his privilege against self-incrimination “was involuntary,” Justice Alito wrote, “and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.”
He failed to assert his privilege. According to the Supreme Court, the Fifth Amendment is now a privilege and not a right. Justices Clarence Thomas and Antonin Scalia would have taken it one step further.
In a concurring opinion, they declared that Salinas would have been out of luck even if he had invoked his Fifth Amendment privilege to remain silent, because the “adverse inference” employed by prosecutors does not trigger a defendant’s obligation to testify against himself.
The four dissenting justices concurred in stating that there was no way that the talk at the police station with Salinas was a friendly chat.
“The context was that of a criminal investigation,” he wrote. “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.”
Justice Stephen Breyer, writing for all four dissenters, stated that,
To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances — even if he is innocent. If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt.
And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself ” — very much what the Fifth Amendment forbids.
Unfortunately for everyday Americans, they have just been handed a blow in losing protections that are guaranteed in the Constitution. Most know that they have a right to remain silent once read their Miranda rights (Miranda v Arizona). What they don’t know now, and probably won’t for many years is that they now have to invoke their Fifth Amendment rights immediately when the police wish to question them. Poorer Americans will, most likely, never find this out until it is too late. It is unconscionable that the Court thinks that it was reasonable for Salinas to tell the police that he was stopping the interrogation and invoking the Fifth Amendment.
The Constitution is supposed to protect the little guy, the person who doesn’t understand the law. It is supposed to enact fair justice to everyone. Because the Court doesn’t see it this way, it is best to never talk to the police. Invoke all your Constitutional rights and stop helping the police.