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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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