End the Lie

Recent Supreme Court decision significantly undermines your right to remain silent

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By End the Lie

(Image credit: deltaMike/Flickr)

(Image credit: deltaMike/Flickr)

The Supreme Court’s decision in Salinas v. Texas on Monday significantly undermines the traditional understanding of the right to remain silent, even to the point of encouraging the kind of questioning that can extract false confessions, according to a report.

In yet another disturbing recent Supreme Court decision, the court ruled 5-4 that the prosecution can use an individual’s silence in response to a question, if they responded to other questions, as evidence of their guilt at trial.

At trial, prosecutors described what they claimed was an uncomfortable reaction on the part of Genovevo Salinas, an individual who was questioned by police after the murder of two brothers in a  Houston, Texas home.

There were no witnesses to the shooting, just shotgun shells left at the scene.

Salinas had been at the house the night before the shooting, agreed to give police his shotgun for testing when he was asked to come to the station to talk.

The police said he stopped talking, shuffled his feet, bit his lip and began to tighten up after they asked if the shells from the scene of the murder would match his shotgun.

Prosecutors brought this up at trial even though Salinas didn’t testify.

SCOTUS Blog explains the decision:

When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.

He argued that his Fifth Amendment right to remain silent was violated since he indeed remained silent and the Supreme Court ruled in the past that prosecutors can’t bring up the defendant’s refusal to answer questions.

The Court radically changed their position in this case. Justice Samuel Alito stated that Salinas was “free to leave at any time” and didn’t expressly invoke his right to remain silent.

Alito was basically saying that “somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer question,” according to Brandon Garrett, a professor of law at the university of Virginia Law School.

Justices Clarence Thomas and Antonin Scalia joined Alito in his judgment but said they think that Salinas “had no rights at all to invoke before his arrest (they also object to Miranda itself),” Garrett said.

This case has many worrisome implications.

In an in-depth article, George Washington University Law School professor Orin Kerr pointed out just one of them in writing, “it is relatively easy for the government to claim that a suspect’s reaction to an incriminating question suggests guilt — and very hard for a defendant to challenge that characterization.”

This is especially true because the kind of questioning at issue is usually informal, unregulated and unrecorded.

Alito and those who sided with him “were not troubled that there was no video to confirm that Salinas was in fact uncomfortable as well as silent,” Garrett pointed out.

In the dissenting opinion, Justice Stephen Breyer pointed out that the Court’s ruling places the “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,” Breyer stated.

If the suspect doesn’t answer, police and prosecutors can now take advantage of the suspect’s silence at trial. They may be able to even use the suspect’s pausing or fidgeting against them.

One of the biggest problems, according to Garrett, is that in many cases in which people were exonerated by DNA testing, innocent people supposedly admitted their guilt before any formal interrogation took place.

According to Garrett, the Court’s ruling in Salinas actually “encourages the kind of loosey-goosey, and easily contaminated, police questioning” that leads to false confessions.

Garrett states that the Court’s decision endorses a “questions first, rights later” approach which gives the police a great incentive to ask questions informally and undermines “the key reform that police have adopted to prevent false confessions: videotaping entire interrogations.”

He points out that police could always just opt to trap a suspect before they begin videotaping the interrogation and not all cases will have DNA evidence available to test.

“The likely result of the court’s embrace of shoddy interrogation tactics: more wrongful convictions,” Garrett concludes.

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3 Responses to Recent Supreme Court decision significantly undermines your right to remain silent

  1. Julia Shanon June 20, 2013 at 7:51 PM

    you know that sometimes silent means gold..

  2. SamClemons December 7, 2013 at 1:52 PM

    Well Lesson Number One class: NEVER agree to accompany the police down to the station for a talk. This defendant was never under arrest and therefore the police had no obligation to advise him of his constitutional rights, per Miranda. If the police are ever interested in you as a “perp”, the only reason you should be at a police station is because you are under arrest and the police have taken you there. It would appear that anything less than full custodial arrest is going to viewed as a “voluntary” police-citizen encounter under Miranda. If you talk to the police you assume the risk that what you say and any other non-verbal communication “can and will be used against you in a court of law.” NB: Always remember, the police are seldom there to actually help you (“yeah, I became an officer to help people…” BS! The officer is lying, you can tell because his/her lips are moving. The primary motive force behind most officer’s career path is social/physical dominance, which hides behind the socially acceptable gloss of selflessness.) but they are ALWAYS there looking to bust you.

  3. Pingback: Proper Interrogation Responses | Eradica

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