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The right to remain silent

Bob is arrested for a murder, given his Miranda rights, and says he wants an attorney.  Ten months later, at his trial, he says he acted in self-defense.  The prosecutor gets up and asks him why he didn't tell that to the police when he had the chance.  Bob is convicted.

John is suspected of murder, and the police ask him to come to the station.  He does so voluntarily, and answers the officers' questions.  Ten months later, at his trial, he testifies he acted in self-defense.  The prosecutor gets up and asks him why he didn't tell that to the police when he had the chance.  John is convicted.

Bob's case gets reversed; the Supreme Court has held that it's not fair to tell man he has the right to remain silent, and then use that silence against him.  Whether John's case -- actually Genovevo Salinas's case -- gets reversed is going to be decided by the Supreme Court in the next couple months.

The Court almost decided that question back in 1980, in Jenkins v. AndersonWhen Jenkins testified in his murder trial that he'd acted in self-defense, the prosecutor got him to admit that he hadn't turned himself in to the police until two weeks later, then argued to the jury that Jenkins had remained silent during those two weeks.  The Supremes affirmed Jenkins' conviction, but solely on the basis that he'd testified, and left open the question that's raised in Salinas:  to what extent can the government use a defendant's pre-arrest silence as evidence of guilt?

Actually, Jenkins left open a number of questions.  The first is whether the 5th Amendment's right against self-incrimination applies at all in this scenario.  The 5th's "compulsion" requirement -- "nor shall [any person] be compelled in any criminal case to be a witness against himself" -- implies some level of coercion, and the Miranda rule acknowledges that:  it's triggered by a "custodial" interrogation of the suspect, and custody means you're not free to leave.  But while that line can be muddied at times, Salinas was unquestionably on the far side of it:  he came to the police station voluntarily, and he was allowed to leave.  And if you move Miranda's line, where do you place it?  If the questioning is in a stationhouse?  If a defendant is a "subject" of the investigation?  Or do you simply eliminate the line altogether, and hold that anytime anyone is questioned by the police, under any circumstances, their silence can't be used against them?  That's certainly an argument, but it pretty much ignores the compulsion aspect of the 5th Amendment.

Then there's the question of whether there was even an invocation of the right to remain silent.  The facts in Salinas' case aren't quite what they were in the hypothetical about John.  Before Salinas came to the police station to answer questions about a homicide, the police seized a shotgun from Salinas' father.  During Salinas' questioning, they asked him if the shotgun would match the shell casings found on the scene.  Salinas looked down, but didn't answer.

Now, this might seem a little silly:  wouldn't being silent be an indication of the exercise of your right to be silent?  I'd like this argument a lot better if not for the Supreme Court's 2010 decision in Berghuis v. Thompkins (discussed here), where the Court held that a defendant had to unambiguously assert his Miranda rights, and that a waiver of those rights could be inferred from the fact that Thompkins finally said something after three hours of interrogation.

Another interesting aspect of Salinas is the way the procedural history impacts the argument.  Salinas' first trial, in which the prosecutor made only an oblique reference to Salinas' failure to answer the question about the shotgun, ended in a hung jury.  On the second go-around, the prosecutor played up the failure to answer, and Salinas was convicted.  Correlation isn't necessarily causation, but you can make a pretty good argument that one could properly infer that the use of Salinas' silence was critical in convicting him.

So, what did the Court make of all this in the oral argument last week?  We'll talk about that on Monday, bumping my more usual stuff back a day.  One thing for defense attorneys:  a decision here is significant, especially if it goes against Salinas.  The lower courts are hopelessly split on this issue -- even the Texas court which rejected Salinas' argument noted that there were Texas decisions going the other way -- but Ohio is not.  Nine years ago, in State v. Leach, the Ohio Supreme Court expressly held that "use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination."

And it may also affect the advice you give your client, which is almost invariably "don't talk to the police."

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