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Taking the 5th

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On Monday, I mentioned that of the remaining Supreme Court decisions for this term, "the only criminal cases still to be resolved are one on mandatory minimum sentences and one on the armed career criminal act."  Oops.  I'd forgotten Salinas v. Texas, the one on the use of a defendant's pre-arrest silence.  That, and Alleyne v. US, came out on Monday, so we'll take a quick look at Salinas, and tackle Alleyne tomorrow.  (No post on Friday; I'm on the road.)

As I'd explained then, Salinas had voluntarily gone to the police station to answer some questions about a homicide.  (This wasn't a custodial interrogation, so Miranda didn't apply.)  During the interrogation, when the officer asked him if the shotgun they'd taken from his home would match the shell casings they found at the scene of the crime, he'd put his head down, shifted nervously, and didn't answer.  At his trial, the prosecutor used that silence to argue he was guilty.

The Court found no problem with this, by a 5-4 margin.  To be sure, Thomas and Scalia concurred only in judgment, but that's a little misleading.  The issue was whether Salinas' silence could be used against him, and the plurality held that his failure to expressly invoke his 5th Amendment right against self-incrimination allowed the government to argue that the jury could draw an adverse inference from his refusal to answer the question.  Thomas and Scalia would go much further:  they have no problem with the ability to draw an adverse inference from silence, even if the defendant had expressly invoked the 5th Amendment.  In fact, they'd vote to overrule Griffin v. California, and allow a jury to draw an adverse inference from the defendant's failure to testify at trial.

The dissenters -- the so-called liberal bloc -- put up a game fight, but the result was pretty much foreordained by the recent cases on invoking the Miranda rights, like Berghuis v. Thompkins.  In that decision (discussed here), the Court had held that Thompkin's statements, made after he'd remained silent through 2 hours and 45 minutes of police interrogation, could be used against him, because he'd never "clearly and unambiguously" invoked his Miranda rights.  Of course, there was a big difference between that case and Salinas; in the former, the government wasn't trying to use Thompkins' silence, they were trying to use what he said.  It was exactly the opposite in Salinas.

That doesn't change the result, and it portends all kinds of mischief.  It's customary for the police now to err on the side of caution with regard to questioning, and to advise someone of his Miranda rights if there's any inkling that he could be a suspect.  Salinas creates a powerful disincentive for that.  Let's say, for example, that the police suspect Joe Doaks of sexually abusing his stepdaughter.  They arrest him, bring him to the station, and advise him of his Miranda rights, whereupon he tells them he wants a lawyer.  End of interrogation.

Now, second scenario, same facts, but instead the police call Doaks and ask him if he'd kindly come down to the station.  He does, they tell him he's free to leave (so no custodial interrogation, and no obligation to give the Miranda warnings), and inform him they'd like to talk to him about some allegations regarding his stepdaughter.  At that point, Salinas would require Doaks to "clearly invoke" his 5th Amendment right against self-incrimination before prohibiting the government from using his silence.  What is a "clear invocation" in those circumstances?  What if he just gets up and leaves, like he was told he could do?

Those details will have to be fleshed out, but I'm not optimistic; as the dissenters pointed out in Thompkins, you could make a pretty convincing case that a man's keeping silent through almost three hours of interrogation meant that he intended to invoke his right to remain silent, and that wasn't good enough for the majority there.  I'm guessing that ambiguous questions are going to be decided in favor of the government.

One more thing:  this definitely changes Ohio law.  As I pointed out in my earlier posts, although there was a wide split in the state and federal courts on this issue, Ohio law was clear. 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."  You could always try to make the claim that use of silence is forbidden under Ohio's constitution, but there you run into an additional problem:  unlike the 5th Amendment, which makes no reference to use of silence, Article I, Section 10 of Ohio's constitution expressly provides that while a defendant cannot be compelled to testify, "his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel." 

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