You Don’t Have the Right to Remain Silent

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/salinas_v_texas_right_to_remain_silent_supreme_court_right_to_remain_silent.html

By Brandon L. Garrett
June 19 2013

Brandon L. Garrett is a professor of law at the University of Virginia School of Law who studies criminal procedure, civil rights, and wrongful convictions. His new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press.

Here are the facts from Salinas: Two brothers were shot at home in Houston. There were no witnesses—only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.

At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions. Two other justices signed on to Alito’s opinion. Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for a different reason; they think Salinas had no rights at all to invoke before his arrest (they also object to Miranda itself). The upshot is another terrible Roberts Court ruling on confessions.

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The court’s ruling in Salinas is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. I have spent years studying cases of people exonerated by DNA testing. A large group of those innocent people falsely confessed—and many supposedly admitted their guilt even before any formal interrogation.

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The court’s new ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberal-moderates). “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” But if he doesn’t answer, at trial, police and prosecutors can now take advantage of his silence, or perhaps even of just pausing or fidgeting.

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[Even conservative Forbes magazine doesn't like this decision.]

http://www.forbes.com/sites/insider/2013/06/19/the-supreme-courts-decision-in-salinas-v-texas-implications-for-white-collar-investigations/

6/19/2013
Richard F. Albert

At the outset of a white collar investigation, counsel will invariably advise the client that if a government investigator unexpectedly appears seeking to “just ask a few questions,” the client should politely decline and direct the investigator to counsel. Although the Supreme Court’s decision this past Monday, June 17, 2013 in Salinas v. Texas relates to police questioning in the context of a murder investigation, it has implications for this common aspect of white collar investigations.

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Other than the simple oddness of the results seeming to turn on whether or not the individual uses the magic words “Fifth Amendment,” another initial observation about Salinas is its apparent reach. There is nothing about the decision or its reasoning that would seem to limit its application to police questioning at the station house, or would prevent it from applying to any law enforcement or other questioning where the witness is not in custody. In short, it would seem to apply to any witness interview by the government.

Salinas also would seem to be contrary to the expectation of many lawyers, much less laypersons, that the government cannot comment at all on a suspect’s silence or failure to respond to questions. Under the rationale of Salinas, if investigators show up unannounced at a witness’s house, and the witness declines to speak to them, or worse starts to speak and then stops the interview, if the witness does not expressly refer to the Fifth Amendment the government would appear to be free to argue at a later trial that the refusal to answer questions was an indication of guilt.

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