What does silence mean? It means Genovevo Salinas isn’t going home again. It strained hope to think otherwise, but the absence of sound doesn’t necessarily suggest the absence of thought. When the plurality opinion in Salinas v. Texas was announced by Sam Alito, however, any lingering hope was sucked out of the room.
Contrary to many, who saw the right to remain silent as one so fundamentally well-grounded as to form the default relationship between citizen and agent of the state, there seemed little hope of that being the case after the Supreme Court’s misbegotten Berghuis v. Thompkins decision, holding the post-Miranda silence is not an invocation of the 5th Amendment right. That non-custodial silence would be shown any greater significance, meaning, was hard to imagine.
At Volokh Conspiracy, Orin Kerr provides an excellent, and much needed, history of the 5th Amendment privilege against self-incrimination, the most significant aspect of which is that it is a privilege against compulsion, “nor shall [any person] be compelled in any criminal case to be a witness against himself.”
No one made Salinas agree to voluntarily answer the questions of police, though this point depends on a fantasy that ignores submission to the shield, law enforcement training designed to overcome independent choice and the overarching sense that refusal to cooperate will result in bad things, ranging from arrest for being uncooperative if not for the underlying crime to a beating from an officer whose commands aren’t complied with fast enough. Judges refuse to acknowledge how regular people feel when confronted by police, and so rule based on the view from high on their bench. Reality rarely touches the world of the Supreme Court justice.
Genovevo Salinas did indeed walk into a buzzsaw of questioning. He was asked questions, and he answered them. He was asked the question he didn’t want to answer, and he went silent. He looked down, he shuffled his feet and his silence told them what they wanted to know.
The question isn’t whether anyone made Salinas answer questions. To a judge, no one did. To anyone else, it’s not so clear. He wasn’t actively forced to do so, but the magic doesn’t have to require force. The mere refusal to be cooperative carries baggage, at least in the real world.
So when Salinas stopped talking, didn’t answer a question after having been otherwise cooperative, he wasn’t made to answer. He wasn’t compelled, in the legal sense. And thus, his silence gave rise to the argument that his failure to utter a denial was tantamount to his confession. His silence spoke volumes.
There is an argument to be made that there is inadequate probative value in silence, and that the prejudice far outweighs whatever inference can be drawn, but it’s a weak argument, one that depends on the discretion of the judge. Such discretionary evidentiary decisions are hardly an adequate safeguard of constitutional rights. So the line is drawn by the Salinas opinion, and it requires pre-Miranda, pre-custody invocation of the right to remain silent. While the decision doesn’t speak to it, it would be wise to assume that the invocation will be required to be as unambiguous as it would be post-Miranda.
As I’ve suggested before, the “advice” of the internet to “just say nothing” to police isn’t sound. After this decision, it’s affirmatively wrong. Silence can be used against you, and saying nothing may serve to incriminate a person just like speaking. But that doesn’t help lawyers to advise people as to what they should do. As Orin asks,
But on the other end, the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.In other words, Salinas has created a potential Catch-22 for citizens who are questioned in what judges think is a non-custodial setting. Say nothing, and your silence can be used against you. Invoke your 5th Amendment privilege and it may be that your invocation can be used against you. Answer questions and that can be used against you as well.
What to do? I would blame it all on the lawyer, which has always been one of the greatest benefits the existence of lawyers confers on society, the perfect scapegoat.
Officer, my lawyer has advised me that I am never to answer questions by the police, and since I am not a lawyer, I am constrained to follow my lawyer’s advice and refuse to answer questions.But how many people will have the will and wits to offer a response like this to Officer Friendly’s “do you have something to hide” query? My guess is 42. And that’s probably what the five justices in the plurality had in mind.