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Justices seem troubled by use of pre-Miranda silence

WASHINGTON — The Supreme Court appeared to worry Wednesday about letting a prosecutor use pre-Miranda silence against a suspect in court, with some justices calling the idea of a jury considering a person’s refusal to answer incriminating questions “scary,” ‘‘radical” and “troublesome.”

“It’s a little scary to me that an unanswered question is evidence of guilt,” Justice Sonia Sotomayor said.

The court was considering an appeal from Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.

Prosecutors in Texas used his silence on that question to convict him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected from use by prosecutors by the Constitution.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to people tell under arrest people they have a right to remain silent without it being used in court.

Answered some questions

Prosecutors argued that since Salinas was answering some questions — therefore not invoking his right to silence — and since he wasn’t under arrest and wasn’t compelled to speak, his silence on the incriminating question doesn’t get constitutional protection. “We’re merely saying that in this particular situation the defendant needs to tell something to the police in order to reveal that he is relying on a constitutional right,” said Assistant District Attorney Alan K. Curry of Houston.

“Doesn’t the mere silence suggest ‘I don’t want to talk any more’?” Justice Antonin Scalia said.

“It might. But it also might suggest that he’s having difficulty coming up with an exculpatory response,” Curry said. “It might suggest that he can’t think of a good answer. It might suggest that he is worried about the question and he is thinking more about how worried he is about the question than how he wants to respond to it.”

Jeffrey L. Fisher, Salinas’ lawyer, called a prosecutor’s desire to tell a jury about a person’s silence “a trap for the unwary,” given the popularity of the phrase, “You have the right to remain silent.”

A person “does the one thing that is consistent with his right, which is exercising it, and somehow the state is telling you that it can walk into court and say, ‘Because he remains silent, he’s guilty of a crime. Jury, you should conclude he’s guilty of a crime’,” Fisher said.

That also worried Justice Ruth Bader Ginsburg. “Someone being interrogated who is savvy will say, ‘I plead the Fifth.’ And somebody who is not that smart is just silent,” she said. “To make a difference between those two people on whether comment can be made on the failure to respond is troublesome.”

The Obama administration is siding with the Texas prosecutors. “A suspect’s silence should … be admissible against him when he fails to expressly invoke the privilege,” Justice Department lawyer Ginger D. Anders said.

“That is such a radical position, that silence is an admission of guilt,” Sotomayor replied.

The case is Salinas v. Texas, 12-246.

Raised in closing

Salinas was charged in 1993 with the previous year’s shooting deaths of two men in Houston. Police found shotgun shells at the crime scene and after going to the home where Salinas lived with his parents was given a shotgun kept inside the house by his father. Ballistic reports showed the shells matched the shotgun, but police declined to prosecute Salinas.

Police decided to charge him after one of his friends said that he had confessed, but Salinas evaded police for years. He was arrested him in 2007, but his first trial ended in a mistrial. It was during his second trial that prosecutors aggressively tried to use his silence when asked about the shotgun in closing remarks to the jury.

“An innocent person is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. He didn’t say: ‘No, it’s not going to match up. It’s my shotgun. It’s been in our house. What are you talking about?”’ a prosecutor told the jury.

Salinas was sentenced to 20 years in prison. The Texas Court of Appeals and the Texas Court of Criminal Appeals upheld the conviction, with the latter court saying “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies.”

The justices are expected to rule by the end of the court’s term in June.