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Tuesday, June 18, 2013

Suspect Cannot Take Advantage of Right to Remain Silent by Merely Remaining Silent

On June 17, 2013, the U.S. Supreme Court issued an opinion upholding the murder conviction of a suspect, rejecting his claim that the prosecution's use of his silence at trial violated his Fifth Amendment right to remain silent.  Salinas v. Texas
The police had questioned the petitioner in connection with a murder investigation.  He was not read Miranda warnings and the interview was noncustodial.  For most of the interview, the petitioner voluntarily answered the police officer's questions about the murder.  However, when police asked him whether ballistics testing would match his shotgun to shell casings found at the scene of the crime, 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."  After a few minutes of silence, the officer asked additional questions, which petitioner answered.
At trial, prosecutors argued that the petitioner's reaction to the officer’s question suggested that he was guilty.  Petitioner claimed that the prosecutor's argument violated the Fifth Amendment, which guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."  He was convicted, and he  subsequently appealed.
The Supreme Court initially took the case to resolve a split in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief.  The Court did not get to that question, however, instead ruling that the petitioner had failed to affirmatively exercise his Fifth Amendment right. The Court reasoned that a suspect who remains silent during questioning may be silent for reasons other than exercise of the suspect's constitutional rights, and may have done so "because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else."   The Court concluded that a witness who "‘desires the protection of the privilege . . . must claim it’" at the time he relies on it.  This ensures that the government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating. 
In effect, the Court said Salinas could not take advantage of his right to remain silent by merely remaining silent.  Justices Thomas and Scalia would go even further, stating in their concurring opinion that even if Salinas had invoked his Fifth Amendment right to silence, the prosecutor’s comments would still be permissible at his trial because they did not compel Salinas to give self-incriminating testimony.


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