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The right to remain silent, part 2

On Friday, we discussed the issues in Salinas v. Texas, the case on the 5th Amendment that was argued before the Supreme Court a couple weeks ago.  We'll finish up on that today with a discussion of how the oral argument went.  

Salinas presented a simple fact situation:  he'd gone to the police station to answer some questions about a murder.  When the police asked him whether a shotgun they'd taken from his father's house would match the casings they found at the crime scene, he looked down, and didn't answer.  He did answer some more questions after that, and at his trial, the prosecutor argued that is failure to answer the question about the shotgun was indicative of guilt.

But as I explained on Friday, this simple fact situation leads to a number of thorny legal issues.  The first one that cropped up in oral argument was whether Salinas' failure to answer the question could be deemed as an invocation of his right to remain silent.  Hovering over this was the Supreme Court's decision two years ago in Berghuis v. Thompkins.  Berghuis had been arrested and Mirandized, and had been subjected to a custodial interrogation for nearly three hours, without saying a word, then finally made several incriminating statements.  The Court decided that Berghuis' silence hadn't been an invocation of his Miranda right to demand that the questioning cease; a defendant had to make a "clear and unambiguous" assertion of that right.  Why shouldn't that be the case here?  Sotomayor went further:  wouldn't adopting Salinas' position give more rights to non-custodial defendants than custodial defendants?

Berghuis is a bit of a red herring, as Jeffrey Fisher, Salinas' lawyer, pointed out.  Nobody argued in Berghuis that his failure to answer questions could be used against him; it was the answers he ultimately gave, not his silence up to that point, which was his problem.  But Texas was claiming exactly that for Salinas:  his silence was what was incriminating.  Kagan quickly rode to the rescue, noting in a softball question to Fisher that the case "presents an entirely different question" from Berghuis.

The counterargument, with Alan Curry for Texas and Ginger Anders from the US Solicitor General splitting the time, was nonetheless a derivative of Berghuis:  that a clear invocation of the right against self-incrimination was required.  That ran into immediate problems with the liberal wing, with Sotomayor telling Anders, "that is such a radical position, that silence is an admission of guilt."  And even the non-liberal members of the bench were experiencing some difficulties with the government's position.  What would have happened, Roberts asked, if instead of not answering the question, Salinas had just announced that he'd decided to go home; would that constitute an invocation of the right?  Even Scalia had trouble embracing the government's concept:  "doesn't the mere silence suggest, 'I don't want to talk anymore'?"

Everybody seems to agree that demeanor evidence, even when accompanied by silence, was admissible, with Fisher freely acknowledging that there would've been no problem is the prosecutor had argued at trial that Salinas got nervous or was sweating when a particular question was asked.  Curry tried to take advantage of that, noting that Salinas' "shuffling of the feet, the biting of the bottom lip, revealed a guilty conscience on his part."  Fisher deftly countered in rebuttal by taking the Court back to the actual trial transcript:  the prosecutor in his closing made no reference to Salinas' demeanor, but told the jury, "the police officer testified that he wouldn't answer that question.  He didn't want to answer that question."

But if there was an agreement among most of the justices that the desire to remain silent could be inferred from... well, silence, there was some discomfiture in making a blanket decree to that effect.  Breyer raised that issue in the first few minutes, asking Fisher if he was contending that "any time you refuse to tell the government anything and, later on, it turns out to be relevant to a criminal prosecution, that that's taken as an invocation of the Fifth Amendment."  Fisher agreed that he wasn't going that far, but suggested a different line:  a noncustodial police interview during the investigation of a crime, whether person being interviewed is a suspect in the crime. 

I'm not sure Salinas can muster the votes for that position, but it seems more likely than the government mustering the votes for the position that there has to be an express declaration of rights.  We'll find out by the end of June.

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