Supreme Court: Your Right To Remain Silent Can Be Used Against You!?

When I first saw the title of the article, Supreme Court: Your Right To Remain Silent Can Be Used Against You : FreedomOutpost.com, in my e-mail, I wanted to jump up and down screaming about the injustice of it all. How could the Obama lackeys on the Supreme Court once again diminish our constitutional rights! Haven't we been beaten down enough! And after reading the article I certainly didn't feel any better but, I decided to take a few days and cool down while I did a bit of homework by reading the full opinion published by the Supreme Court (The full opinion can be found at Salinas v. Texas).

Let me start by stating that I am by no means a constitutional scholar and while I am all for protecting and expanding our constitutional rights, I unfortunately found myself agreeing with the opinion of the majority in this case.

As I read the majority and dissenting opinions I saw clearly the flaws in the dissenting opinions argument. But let's start at the beginning of this case's opinion from the Supreme Court. At the beginning of the opinion, on page one, there is a syllabus of the case the first paragraph reads:

Petitioner, without being placed in custody or receiving Miranda warnings,
voluntarily answered some of a police officer’s questions about a murder, but
fell silent when asked whether ballistics testing would match his shotgun to
shell casings found at the scene of the crime. At petitioner’s murder trial in
Texas state court, and over his objection, the prosecution used his failure to
answer the question as evidence of guilt. He was convicted, and both the State
Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim
that the prosecution’s use of his silence in its case in chief violated the Fifth

While this does not give any of the surrounding facts for the rest of the case, this is supposed to be enough information for the reader to understand the Supreme Court's opinion of the defendants Fifth Amendment infringement claims. After reading it, it does seem lacking until you read the rest of the opinion. Justice Alito's opinion (which The Chief Justice and Justice Kennedy joined with) is twelve pages long and rather boring. That said, I encourage all of you to read it for yourselves as I believe this is an important case that deserves all of our attention. Now to the highlights (for the rest of this article I am omitting their specific case citing and replaced them with "...", if you want to know what cases they cited, read the entire opinion.):

At the bottom of page three of Justice Alito's opinion, Section II A starts:

The privilege against self-incrimination “is an exception to the general principle
that the Government has the right to everyone’s testimony.” ... To prevent the
privilege from shielding information not properly within its scope, we have long
held that a witness who “‘desires the protection of the privilege . . . must claim
it’” at the time he relies on it. ... ...
That requirement ensures that the Government is put on notice when a witness
intends to rely on the privilege so that it may either argue that the testimony
sought could not be self-incriminating, ..., or cure any potential self-incrimination
through a grant of immunity, ... The express invocation requirement also gives
courts tasked with evaluating a Fifth Amendment claim a contemporaneous record
establishing the witness’ reasons for refusing to answer.

All of that looks pretty straight forward. The courts have long held that if you want the protection of the Fifth Amendment during questioning, you have to state you are using it once you decide to rely upon it. It also gives the government the ability to "force" the issue in cases where they can prove the testimony could not be self-incriminating or to grant immunity to cure any potential self-incrimination. It also creates a record at that time of the expressed desire and reasons for you to invoke your Fifth Amendment right for any court tasked with evaluating the claim.

It all makes sense too. You need to let the state know you are invoking your right not to incriminate yourself before they can assume that is what your silence is for. I can understand all of that.

So, moving on. At the start of the next paragraph Justice Alito alludes to two previously recognized exceptions to the requirement that you specifically invoke your right not to incriminate yourself and that neither apply in this case.

Exception 1:

...a criminal defendant need not take the stand and assert the privilege at his own
trial. That exception reflects the fact that a criminal defendant has an “absolute
right not to testify.”

I agree that this exception does not apply because at the time of the interview, the petitioner was not a criminal defendant on trial.

Exception 2:

...we have held that a witness’ failure to invoke the privilege must be excused where
governmental coercion makes his forfeiture of the privilege involuntary. Thus, in
Miranda, we said that a suspect who is subjected to the “inherently compelling
pressures” of an unwarned custodial interrogation need not invoke the privilege. ...
Due to the uniquely coercive nature of custodial interrogation, a suspect in custody
cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim
[it] after being suitably warned.”

Okay. This section explains that you don't have to claim your 5th Amendment rights if you have been arrested (taken into custody) and are being interrogated. I can also see how this would not apply since the petitioner had not been arrested at the time of this interview.

The final paragraph of section II A serves to sum up the other paragraphs of section II A so I will not readdress it here. Section II B discusses the question of whether or not "to adopt a third exception to the invocation for cases in which a witness stands mute and thereby declines to give an answer that officials suspect would be incriminating." This argument was dismissed nearly out of hand because in all of the cases cited (See the full opinion here) by Justice Alito the courts ruled that being silent alone, no matter the length or brevity, is not an indication someone wants to invoke their 5th Amendment rights until after they have been given their Miranda warnings.

Section II C discusses the petitioner's argument "that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice."

Justice Alito dismisses this argument because he notes that:

...our cases have long required that a witness assert the privilege to subsequently
benefit from it. That rule has not proved difficult to apply. Nor did the
potential for close cases dissuade us from adopting similar invocation
requirements for suspects who wish to assert their rights and cut off police
questioning during custodial interviews.

He goes further to show what problems could be caused by not requiring a person to expressly invoke their Fifth Amendment rights when he writes in the next paragraph:

Notably, petitioner’s approach would produce its own line-drawing problems, as
this case vividly illustrates. When the interviewing officer asked petitioner if
his shotgun would match the shell casings found at the crime scene, petitioner
did not merely remain silent; he made movements that suggested surprise and anxiety.
At precisely what point such reactions transform “silence” into expressive conduct
would be a difficult and recurring question that our decision allows us to avoid.

He further dismisses the arguments of the petitioner when he makes the following statements in his final paragraph.

We also reject petitioner’s argument that an express invocation requirement
will encourage police officers to“‘unfairly “tric[k]”’” suspects into cooperating.
Reply Brief21 (...). Petitioner worries that officers could unduly pressure suspects
into talking by telling them that their silence could be used in a future prosecution.
But as petitioner himself concedes, police officers “have done nothing wrong”
when they “accurately stat[e] the law.”

After reading the majority opinion I can agree with the ruling made by the Supreme Court in this case. The petitioner is required to state he is invoking his Fifth Amendment rights so long as he has not been given his Miranda warnings and since he did not, the judgement of the lower court should stand.

I won't be so hasty in my agreement though. Let's look closely at the dissenting opinion and see if it can change my mind. The dissenting opinion was delivered by Justice Breyer and Justices Ginsburg, Sotomayor, and Kagan join with this dissent.

Again, Section I of the dissenting opinion is a syllabus of the case. Section II A starts the dissenting justice's arguments and is below:

The Fifth Amendment prohibits prosecutors from commenting on an
individual’s silence where that silence amounts to an effort to avoid becoming
“a witness against himself.” This Court has specified that “a rule of
evidence”permitting “commen[t] . . . by counsel” in a criminal case upon a
defendant’s failure to testify “violates the Fifth Amendment.” ... ...; ... And,
since “it is impermissible to penalize an individual for exercising his Fifth
Amendment privilege when he is under police custodial interrogation,” the
“prosecution may not . . . use at trial the fact that he stood mute or claimed his
privilege in the face of accusation.” ...

Particularly in the context of police interrogation, a contrary rule would
undermine the basic protection that the Fifth Amendment provides. Cf.&nbsp...
("The privilege . . . usually operates to allow a citizen to remain silent when
asked a question requiring an incriminatory answer"). 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. Cf. ... (definition of
"testimonial" includes responses to questions that require a suspect to
communicate an express or implied assertion of fact or belief). And that is
similarly so whether the questioned individual, as part of his decision to remain
silent, invokes the Fifth Amendment explicitly or implicitly, through words,
through deeds, or through reference to surrounding circumstances.

The point where I see the flaw in Justice Breyer's dissension is where his quotation of precedent states that “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.” And as shown in the precedents listed in the majority opinion, the petitioner was not undergoing a custodial interrogation, but a consenting interview with the police. Had he been placed under arrest and given his Miranda warnings, then the Fifth Amendment would apply.

In Section II B Justice Breyer states his argument that 5th Amendment protection applies because
"no ritualistic formula is necessary in order to invoke the privilege." This means that no set phrase or actions need be done to invoke your Fifth Amendment rights. Again in this case, his argument falls apart when he specifically states that a persons silence after receipt of the Miranda warnings indicates the use of the constitutional right, see below:

...it is not any explicit statement but, instead, the defendant’s deeds (silence)
and circumstances (receipt of the warnings) that tie together silence and
constitutional right. Most lower courts have so construed the law, even where
the defendant, having received Miranda warnings, answers some questions
while remaining silent as to others.

The dissent go on in Section II B listing other cases as precedent for when a person would expressly need to state their reliance on 5th Amendment protections; however I do not think these help the case either. Justice Breyer writes:

The cases in which this Court has insisted that a defendant expressly mention
the Fifth Amendment by name in order to rely on its privilege to protect silence
are cases where (1) the circumstances surrounding the silence . . . did not give
rise to an inference that the defendant intended, by his silence, to exercise his
Fifth Amendment rights; and (2) the questioner greeted by the silence . . . had a
special need to know whether the defendant sought to rely on the protections of
the Fifth Amendment.

I think this case fails on both of the counts listed above because first, the petitioner's silence apparently did not "give rise to an inference that the defendant intended" as the police determined that his silence and actions were those of guilt, and second, because he was not in custody and had net been given his Miranda warnings the questioner "had a special need to know" that the petitioner intended to rely on his Fifth Amendment protections.

In Section II C of the dissent Justice Breyer makes the following statements:

Applying these principles to the present case, I would hold that Salinas need
not have expressly invoked the Fifth Amendment. The context was that of a criminal
investigation. 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.

This section appears to be moot as it has been established in both the majority and dissent opinions that the petitioner, regardless of the context, was not undergoing an interrogation, but an interview and he could have gotten up and left at any time. Regardless of the intention of the question about the shotgun the petitioner could have gotten up and left, asked for a lawyer, or danced a jig in the corner. He was not in custody at the time so it was the petitioner's responsibility to speak up in some manner if they intended to invoke their Fifth Amendment protections.

The final part of the dissent, Section II D, is basically a summary of the rest of the paper so I see no need to comment further on it. If you wish to read it, and again I suggest that you do, the link to the full opinion is placed earlier in this article.

To be even more thorough I downloaded a copy of the Constitution of the United States and re-read the Fifth Amendment. Here it is with the pertinent passage highlighted:

Amendment V.

No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.

The language in the Fifth Amendment says "nor shall be compelled in any criminal case to be a witness against himself." Reading that statement says to me that you have to be in the process of a trial for the Fifth Amendment to apply to you. From reading the precedent listed in the Supreme Court's opinion, it appears to me that the court has broadened this to apply outside of the scope of a trial so long as you proclaim that you are falling back on your Fifth Amendment right not to incriminate yourself.

I could be wrong in all of this, but this is what the Constitution and the Supreme Court's opinion says to me. If you disagree please feel free to explain it in the comments below. I allow all intelligent comments on this site. I reserve the right to remove any comments that are flaming or use foul language.

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