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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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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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