The most common piece of advice given by criminal defense lawyers, even more than don’t try this at home, is that you have the right to remain silent. Use it.  But in Salinas v. Texas, scheduled for oral argument on April 17, 2013, the Supreme Court will consider whether silence in response to police questioning can be offered as evidence of guilt.  The Texas Court of Criminal Appeals held it could.

What? How can they do that? Everybody knows Miranda by heart.  It’s been enshrined in 1000 television shows. We have the right to remain silent, so how can the exercise of that right be used against us?

Well, Miranda had a little detail that somehow doesn’t make it into most lawyer shows, that it doesn’t come into play until a custodial interrogation.  That means when the police, in a non-custodial situation, ask questions, they don’t have to provide the beloved warnings and a failure to respond, silence, to a question may well be a response in itself, and available to the prosecution in its case-in-chief.

In Salinas, the defendant was approached by police about the murder of two brothers by shotgun.  Via the ABA Journal :

When the police approached Salinas at his home, he was generally cooperative, according to the briefs. He consented to a search of the residence. Asked about the presence of any guns, he told the officers that his father, who lived in the same home, owned a shotgun. The elder Salinas turned over the shotgun to the police, and Salinas agreed to go to the station house, ostensibly to provide fingerprints that might eliminate him as a suspect in the slayings of Juan and Hector Garza.

At the police station, Salinas was neither handcuffed nor placed in custody. He answered questions for nearly an hour about his relationship with the two victims and about his activities around the time of the slayings. Salinas answered every question but one—when the police asked him whether the shotgun from his home would match the shell casings found at the murder scene.

At that point, Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, [and] began to tighten up,” an officer later testified.

After a mistrial, the prosecution hit silence hard in the retrial. In summation, the prosecution argued . “An innocent person is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. … He wouldn’t answer that question.” Bang. Twenty years.

In the merits brief, defendant argues that it makes no sense to distinguish the exercise of 5th Amendment right not to bear witness against oneself based on whether the silence happens in custody or before.

The prosecutorial use of such silence compels the defendant to be a witness against himself because it leaves him no avenue to avoid to avoid incriminating himself. If he speaks, his words can be used against him; and if he refuses to speak, the prosecution can argue that his silence is evidence of guilt.

The argument is as valid in the pre-arrest, pre-custodial phase as later. Indeed, though the defense neglected to make the point, it may well be argued that it’s more inquisitorial (rather than adversarial) to allow the prosecution to use silence as a weapon, given the pervasive knowledge and appreciation of the Miranda warnings.  Everyone knows that a person, having been warned, is entitled to exercise the right to remain silent. To the extent anyone isn’t prejudiced by the invocation of rights, this would be it.

On the other side of the equation, however, people expect an innocent person to speak to police, to freely answer questions.  As the Texas prosecutor argued in closing, that’s what innocent people do. The suspect is then placed in the position of specifically invoking his right to remain silent, pre-arrest, pre-custody, something that few people know how to do correctly at any time.  To the suspect, as well as the police, this is tantamount to a neon sign saying “arrest me, I did it!” 

In response, Texas latches onto the Supreme Court’s  misbegotten decision in Berghuis v. Thompkins, holding the silence isn’t the invocation of 5th Amendment rights, but merely the absence of sound.  It didn’t take long for the Berghuis decision to come around and bite the Court in the butt. 

Texas then argues that silence wasn’t merely silence, but the lack of a response coupled with physical cues, nonverbal response, which was in fact a response to the police questioning, even if not in so many words.  But the respondent’s best trick is the rhetorical characterization of Salinas’ silence as “selective, transitory silence.” 

Having seized the opportunity to extensively answer questions to the extent it served to exculpate him from the murders, Texas argues that his “selective, transitory silence” in the face of a question Salinas, knowing that he had no good answer, was itself damning.  And indeed, the cops happened on a question with no good answer, and his silence was heard loud and clear.

The problem with Texas’ argument is that Salinas’ silence is precisely the nature of self-incrimination that the 5th Amendment is designed to protect.  While it may well be “unfair” to the prosecution that a suspect can have it both ways, providing answers when it serves his interest and silence when it doesn’t, the Constitution isn’t a guarantee of fairness to the prosecution, but a reservation of rights to the individual.

The defendant’s argument, on the other hand, that pre-custodial interrogation silence creates a dilemma ignores that it’s a dilemma of his own making. No one made Salinas answer questions happily before his sudden silence. No one prevented him from expressly invoking his right to remain silent. It may be counterintuitive to do so, as it begs for arrest, but then the invocation of constitutional has long been held to require a clear and unequivocal expression.

The tie-breaker between these positions seems to come from the  amicus argument by the ACLU, that if the Supreme Court backs Texas’s position, it creates an incentive for police to manipulate the custodial setting in order to avoid having to give Miranda warnings and keep the defendant in an untenable position for as long as possible, hoping to either get a confession or silence to be used as evidence of guilt. 

In conjunction with the low probative value of silence, and rhetorical and usually ridiculous contention of how “innocent people behave,”  and the societal benefit of respecting constitutional rights, the defense position that no distinction should be drawn between pre-custodial silence and post-Miranda silence ought to take the day.  But given the Court’s opinion in Berghuis, I wouldn’t bet the farm on it.