The U.S. Supreme Court’s splintered ruling allowing a witness’ pre-arrest silence to be introduced at trial — its latest decision carving out more of the contours of defendants’ well-known right to remain silent — seemed at first blush to be a devastating blow to defense attorneys and their clients.
In its ruling in Salinas v. Texas, the court held that a witness who stopped answering police’s questions could not rely upon the Fifth Amendment right against compelled self-incrimination because he did not expressly invoke it.
But if the devil is in the details, when it comes to the implications of the case in witness interrogation rooms and criminal courts across the country, the fine lines will be in the facts.
The effect of the ruling is “extraordinarily unclear,” said Mark Graber, a constitutional law professor at the University of Maryland Francis King Carey School of Law in Baltimore.
Defense attorneys say that the plurality decision is not a total loss.
“The silver lining is that the U.S. Supreme Court, unlike the Texas Court of Criminal Appeals, strongly implied that the Fifth Amendment does apply pre-arrest,” said Neal Davis, a partner at Stradley, Davis & Reynal LLP in Houston who has represented the defendant since his appeal in Texas state court. “The state prosecutor’s position was that the Fifth Amendment doesn’t apply pre-arrest.”
But the case-by-case line drawing that lies ahead to determine just what kind of questioning, statements and situations trigger a witness’ Fifth Amendment rights will not only toughen the job of prosecutors and defense attorneys. It might also hurt the state of criminal law.
“This is an area of the law that the court should be making as simple as possible, and instead they are complicating it,” said Tim Lynch, director of the Cato Institute’s Project on Criminal Justice in Washington and author of an amicus brief supporting the defendant in the case.
And the stakes are particularly high when it comes to police questioning of individuals who may not be savvy about the state of the law, or who may be hampered by mental disabilities, language barriers or the influence of drugs or alcohol.
“Complicated jurisprudence in this area really hurts the most vulnerable people,” Lynch said.
Tough line-drawing ahead
Graber said the potential effect of the court’s ruling remains unclear because of the fact-specific nature of the case, which involved the questioning of Genovevo Salinas in connection with a murder case. Salinas, who had not been arrested or Mirandized but voluntarily agreed to speak to police, answered several questions before he was asked whether shotgun shells found at the murder scene would match the gun found in Salinas’ home.
According to police, Salinas didn’t answer the question but rather looked at the floor, bit his bottom lip and clenched his hands.
At trial, prosecutors argued that an innocent person would have answered the question, which helped lead to a murder conviction that was affirmed by Texas’ appellate courts.
“So in this case, he answered five questions, but the sixth question he didn’t answer,” Graber said. “Suppose when he was asked the sixth question, he said: ‘I don’t want to talk to you anymore’? We don’t know.”
That lack of clarity prevents the case from being a game-changer, Graber said.
“I liken it [to] trench warfare,” Graber said. “It seems like this is an opinion in which the conservatives spent a lot of energy and they gained five feet.”
Davis said the case underscores the need for potential criminal witnesses to be better educated about their rights — and what they must do to invoke them.
“We now have a duty to advise our clients not just to remain silent or not talk to police, but also to actually invoke that right expressly,” Davis said. “They need to know that they have to use those buzzwords.”
But there is a glitch in that approach because most defense attorneys don’t even meet their clients until they have already been arrested. That makes the task of educating them about their pre-arrest constitutional rights impossible.
Chipping away at defendants’ rights?
Davis said that despite his client’s loss, he found some consolation that Justice Samuel A. Alito Jr.’s plurality view that the defendant’s claim fails because he did not expressly invoke his right not to answer the question posed by police, got two more votes from the justices.
If the court had adopted the position taken in Justice Clarence Thomas’ concurrence, co-signed by Justice Antonin G. Scalia — that the Fifth Amendment right not to give self-incriminating testimony does not extend to defendant’s silence during a pre-custodial interview — “the result would have been devastating,” Davis said.
Prosecutors chiming in as amicus in the case pressed the court to take the more hard-line position. An amicus brief filed in the case by Kym L. Worthy, prosecutor for Wayne County, Mich., the state’s largest metropolis which includes Detroit, urged the court to adopt the position that the “right to remain silent” does not exist under the Constitution. Rather, the brief states, there is only the right not to be compelled to speak against one’s own interest.
“[S]peaking in the absence of compulsion is no more the waiver of a constitutional right than is praying or attending church without compulsion” a waiver of the First Amendment right of religious freedom, Worthy wrote.
Davis said he sees the ruling as a loss not only for his client, but for criminal defendants in a broader sense. The decision, he said, represents the latest in a series of moves by the Supreme Court to chip away at the rights of witnesses and arrestees, pointing to decisions including this month’s ruling in Maryland v. King allowing the warrantless collection of DNA samples from arrestees.
But unlike in other cases, Davis said, the feedback he is receiving from the public after the Salinas ruling seems to be falling on the side of defendants.
“Criminal defense attorneys are usually the target of the public’s ire,” Davis said. “But in this case there has just been a groundswell of support for our position. People just don’t think it makes sense to have to expressly assert a right to remain silent.”
Lawyers USA is a sister publication of The Daily Record.