Salinas v. Texas
I’m a big advocate of not talking to the police. I advocate silence whenever someone is being investigated for a crime. And I advocate this for two reasons: 1) you are likely to get yourself in more trouble by talking, and 2) your silence can’t be used against you in future proceedings.
Both of these are still true, but the United States Supreme Court has been eroding the protections of the inviolate silence recently. Your silence still can’t be used against you, but only if you properly invoke your constitutional right to silence. It gets a little muddy here, but let’s look at bit closer.
Current 5th Amendment Law
Under the 5th Amendment to the United States Constitution, as well as Article 1, Section 9 of the Washington State Constitution, no person can be compelled to produce evidence against one’s self. On its surface that means the government cannot force you to confess to a crime. If you look closer, it also means that the government cannot use your right to silence against you. After all, if you choose not to “produce evidence,” i.e. confess, your remaining options are to remain silent or lie. If you remain silent the prosecution could simply say, “If he was innocent he would have nothing to hide.” That seems unfair. Thus the right to silence means little unless you also have the right not be punished for invoking it.
The right to silence doesn’t apply to every situation. Drivers are still required to hand over their driver’s license when being stopped by the police, for example, because that is a condition of the road. Similarly, if you’re involved in an accident, you do have to give identifying information at the scene. You do not have to admit fault at the scene of an accident, or anything that might incriminate you. But beyond vital statistics and some corner cases, the right to silence used to be fairly absolute.
In recent years there’s been a bit of a shift of this absolute right. To be sure the 5th Amendment still exists. As a part of the United States Constitution, it will likely continue to exist for as long as the United States does. The issue is that the protection of the right isn’t what it used to be. The burden of invoking the protection of the right has shifted more and more to the public
This first came to a head in 2010 in Berghuis v. Thompkins. In Thompkins, a suspect in a shooting was picked up by the police and brought to a station. He was intermittently questioned for three hours. Over the course of three hours Mr. Thompkins was reported to have muttered to himself and only occasionally answering the question he was asked. He neither invoked his rights nor waived them. But for the three hours, Mr. Thompkins was mostly silent. Finally the police asked if he had repented to God about shooting the victim. He replied he did repent and that statement was used against him at trial.
Normally once the 5th Amendment is invoked, questioning from the police should cease immediately. The Supreme Court held that because of his intermittent monologue and failure to invoke his right to silence, the defendant had waived the privilege and thus it was proper for the police to continue questioning the defendant, and thus his statement was properly admitted.
The Court, in a 5-4 decision, ultimately held that the right to silence must be explicitly (verbally) invoked. The dissent held that the majority’s ruling was patently contradictory to existing Miranda law and that it was internally inconsistent.
Salinas v. Texas
Salinas, a case from 2013, also considered invoking the right to silence. In Salinas, the police who were investigating a shooting contacted the defendant. Mr. Salinas voluntarily went with the police (he was not under arrest) and voluntarily answered their questions. But when the police asked him about certain shotgun shells, Mr. Salinas refused to answer.
At his trial the prosecution used Mr. Salinas’ silence against him, arguing that his silence was indicative of guilt. In fact the prosecutor said in closing argument “an innocent person” would have protested any accusation about a murder or shotgun shells. Mr. Salinas was ultimately convicted.
The U.S. Supreme Court, came out with a contentious opinion. Three justices writing for the majority to uphold the conviction, two justices agreeing the conviction should be upheld but for different reasons than the first three, and four justices saying the conviction should be reversed.
The majority decision held that the prosecution’s use of Mr. Salinas’ mannerisms at the station, including his silence, was appropriately used during his trial. The majority opinion emphasized that case law required a suspect to invoke their privilege, and that to do otherwise would place too high a burden on law enforcement. Justice Alito, the author of the majority ruling, opined that because Mr. Salinas had answered some questions, and then stopped without expressly invoking the right to silence, his silence was ambiguous. The Court noted that the 5th Amendment protects against self-incrimination, thus there is no right to silence to protect someone else. The Court noted that without invoking the right to be free of self-incrimination, police could properly presume silence was to protect another. I have some issues with that belief.
The concurring opinion, authored by Justice Scalia, would have upheld Mr. Salinas’ conviction but for a different reason. Under Justice Scalia’s view, there is no prohibition about using someone’s silence against them even if they had invoked the 5th Amendment. Justice Scalia would have prosecutors rhetorically ask “Why would an innocent person not want to talk to the police?” every time. As I said in the beginning, case law is pretty clear punishing someone for exercising their rights is effectively the same as having no rights at all, so Justice Scalia’s opinion here is a big departure from past case law.
This is a terrifying viewpoint for protectors of the Constitution and thankfully it remains not the law of the land.
The dissent said law enforcement could readily assume Mr. Salinas was invoking his 5th Amendment rights because 1) he was in a police station, and 2) police told him he was a suspect. The dissent argued there was a serious problem with requiring Mr. Salinas, who by all accounts was not highly educated, to invoke a constitutional amendment by name. The majority opinion replied that there were no “magic” words needed to invoke the amendment and that trial courts can decide the issue on a case-by-case basis.
The holding of this case did not surprise me. The courts have been moving towards weakening the 5th Amendment for years. Based on the facts of the case and the Thompkins case, the failure to invoke the 5th Amendment was going to be used against the defendant.
That said, I think it’s a silly ruling and bespeaks an “ivory tower” view of the law. Having to speak in order to say you’re going to be relying on your right to silence is farcical. Requiring people to say something even in the ballpark of “I invoke my constitutional rights” or “I have the right to silence” or “I’m not going to answer any questions” is too high a burden for the average citizen. Police already have an advantage in an interrogation against an average citizen. Putting more hurdles for the person being questioned makes the fight even more lopsided.
That being said, all hope is not lost. This case in particular had a couple of things working against Mr. Salinas.
The first was that he voluntarily went with the police to the station. The second was that he answered a bunch of questions before they asked about the shooting. In both of these ways, Mr. Salinas expressed a willingness to be cooperative before becoming quiet. The Court focused heavily on his early cooperation because, to them, the later silence without expressly invoking 5th Amendment was ambiguous. Again the court emphasized Mr. Salinas had no constitutional protections for incriminating someone else. The Court said it was ambiguous based on his earlier cooperation if he was now protecting himself or another. If Mr. Salinas never answered any questions the case may have been resolved differently.
Which means the take-away is simple: do not answer questions from the police. You still have the absolute right to stay silent, and to avoid confusion it is best you utilize it as soon as applicable. The Court would want you to invoke it explicitly, and that’s fine, but even better is if it’s explicitly invoked and the prosecution cannot point to a previous pattern of answering police questions.
Another point was that Mr. Salinas was never arrested or Mirandized while in police custody. Readers may remember that Miranda rights are not really rights at all, they are mere reminders of the rights every person already has. But being read Miranda elevates the encounter from a casual situation to a true arrest and seizure. Thus anyone being read Miranda, i.e. anyone begin arrested, would be doubly served to stay quiet and ask for an attorney. The right to silence after being Mirandized has still been upheld. “The use of silence at the time of arrest and after the Miranda warnings is fundamentally unfair and violates due process.” Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
Ultimately, while the goalposts have shifted to increase the defendant’s burden, the rights of every citizen remain the same. Citizens have the right to not answer police questions under any circumstance. And upon being questioned or seized by the police, they have the right to call an attorney. If the police ever question you or someone you know, I’d suggest giving me a call.