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Bell/Gaerte: 3 things to know about the right to silence after Salinas

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Bell Gaerte 3 thingsRecently, the Supreme Court of the United States delivered a major blow to one of the bedrocks of a criminal suspect’s rights. In Salinas v. Texas, the court made clear that a suspect’s silence can be used against the suspect in instances when the silence is only exercised passively. 133 S. Ct. 2174 (2013).

In Salinas, the suspect was voluntarily speaking to the police about a murder. Id. at 2175. He was not in custody and had not been given a Miranda warning. Id. He answered some preliminary questions, but “fell silent” when officers pressed him about whether shotgun shells found at the scene would match the shotgun that he owned. Id. at 2175-2176. At his trial, over Salinas’ objection, the prosecutor argued that his silence in the face of that question was evidence of his guilt. Id. at 2176. The court found that this evidence and argument did not violate Salinas’ Fifth Amendment privilege against self-incrimination.

Here are the three things you need to know about the impact of the court’s decision in Salinas:

1. A suspect must speak up to remain silent.

When asked about the shotgun shells, Salinas said nothing. Id. at 2178. Instead, he “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” Id. Moments later, Salinas resumed answering questions. Id. Salinas’ attorney argued that his client’s silence in response to the question was most likely due to his assertion of his Fifth Amendment privilege against self-incrimination. The court rejected the argument and found that there were several reasons Salinas could have been silent, and that if he intended to exercise his Fifth Amendment right to remain silent he needed to say so. Id. at 2177. The court concluded that a suspect’s privilege against self-incrimination is not self-enforcing and he or she must now affirmatively “plead the Fifth” in response to an incriminating question he or she does not want to answer.

In other words, a suspect must speak up to remain silent. This seems counterintuitive, and the court’s ruling is one that many attorneys may not have predicted. In fact, four justices of our highest court disagreed that this should be the law. How does this translate to real life? Do most criminal suspects, innocent or not, know that they must “plead the Fifth” to assert their constitutional rights? On the day they are questioned, will they remember this lesson from civics class? Likely not. The practical reality is that many suspects who wish to remain silent and assert their constitutional rights will not properly do so, and their silence will be used against them.

2. The details of a suspect’s silence will now be litigated.

In a post-Salinas world, a prosecutor can comment on a suspect’s non-answer to a question. An issue in Salinas was why the suspect was silent, and the prosecutor in that case likely argued that the suspect’s biting of his lip instead of giving an exculpatory answer to the question demonstrated that he was guilty. If a prosecutor can comment on such things, can he or she also comment on whether a defendant stutters or pauses prior to expressly invoking his or her right to remain silent? Will such comments then force a defendant to testify at a trial when he or she would not otherwise do so in order to solely explain a speech pattern or the intent of his or her silence? Would that testimony open the door to cross-examination about the actual facts of the case? Time will tell. One thing is clear: In the future, silence and the reasons for it will be litigated and commented upon in court.

3. What’s my line, anyway? It is difficult to know.

This is a complex area of constitutional litigation that turns on narrow facts involving custodial versus non-custodial interrogations and whether an answer is incriminating or innocuous. The Salinas decision spawned an outcry from lawyers with vested interests on both sides of the issue. The opinion itself is a 5-4 decision, with the majority split 3-2. Lawyers will continue to debate the intricacies and impact of the decision in courtrooms throughout the country for years to come.

But what is a layperson expected to know with respect to his or her responsibility to invoke the right to remain silent? Justice Samuel Alito rejected the idea that the Fifth Amendment expresses an “unqualified right,” but when the rubber meets the road, what are the magic words? It seems clear that a suspect who verbalizes “I hereby assert my Fifth Amendment privilege to be free from self-incrimination” in response to a law enforcement officer’s question would be protected. What about the suspect who states something less “lawyer-ly,” such as “I’d rather not answer that”? Will the court cut that suspect some slack and conclude that the defendant’s intent to assert his right to silence was clear? Or will the court demand something more? If it is the latter, the practical reality may be that silence will be used to argue guilt in criminal courts in the future.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached via email at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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