The case is Salinas v. Texas, 12-246.
The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent.
The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.
Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.
The high court upheld that decision.
The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant's refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.
The court decision was a conservative/liberal split, with Alito's judgment upholding the conviction, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia.
Liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. "In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning," Breyer said in the dissent.
In 1976, in Doyle v. Ohio, the Court held that the prosecution may NOTcomment on a suspect’s silence when he was under arrest and had been given Miranda warning. Here Salinas was using his right to remain silent that belongs to every citizen. However, because the police did not move to arrest Salinas, the prosecutors are allowed to achieve the prejudicial impact addressed in Doyle.
The prosecutors also served to undermine the right not to take the stand. In Griffin v. California, the Court ruled that prosecutors could not comment on an individual’s decision not to take the stand and testify. Yet, here the prosecutors succeeded in magnifying the impact of this failure to testify by directing the attention of the jury to his decision to remain silent in the pre-custodial interview.
Of course, now the police need only to ask questions BEFORE putting some into custody BEFORE reading them the Miranda Act, to use their silence against them.
Citizens will now be able to have protected silence only AFTER being placed in custody. Of course you had that right before that point, but silence would now be incriminating. That gives police every incentive to delay custody — an incentive that already exists due to other rules like Miranda.
In his dissent, Justice Breyer stressed the danger of this decision:
<<...the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence. That need is also supported by the absence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or whether to grant immunity, see Kastigar, 406 U. S., at 448. Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of theprivilege.” Quinn, supra, at 164. That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor.>>This ruling will likely open up an entire area of new prosecutorial arguments using silence as evidence of guilt. It is a major blow to the rights of citizens.
<<One court that refused to allow such evidence pointed to the incentive a contrary rule would create for the police—to delay questioning in order to create an extended post-custody period, an intervening silence that could be used against the defendant. (United States v. Moore, (D.C. Cir. 1997) 104 F.3d 377.) Another federal court pointed out that the Miranda rule was designed to SAFEGUARD the defendant’s Fifth Amendment rights, and that the government should NOT be allowed to burden that right by implicitly pressuring the defendant to give it up and speak. (U.S. v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023.) An appellate court in California agreed. (People v. Tom, 2012 DJDAR 3595 (2012).)
But some courts have ruled otherwise, including a decision that emphasized the importance of knowing whether the defendant was under official compulsion to speak—only then, the court reasoned, would his silence be a “statement” for purposes of his Fifth Amendment rights. Silence in the face of pre-Miranda interrogation is different, the court reasoned, than silence in the absence of probing or questioning, and should be admitted. (U.S. v. Frazier (8th Cir. 2005) 408 F.3d 1102.)
A total of ten lower federal and state courts have ruled that the Fifth Amendment DOES apply to silence BEFORE arrest, and before police have the duty to give Miranda warnings, with about as many lower courts ruling that it does not. >>
HIS SILENCE IS A STATEMENT? HOW DOES THAT WORK?
HOW IS ONE INTERROGATION DIFFERENT FROM ANOTHER WHEN THE SAME POLICE ARE DOING THE QUESTIONING?
HOW CAN THE 5TH AMENDMENT TURN OFF AND ON WITHIN A MATTER OF MINUTES, HOURS OR EVEN IN THE SAME DAY?
OR, AS THE DAILY KOS ASKED:
<<So suppose the cops ask me my name and I reply honestly, then I fail to answer anything else. According to this decision (which likely won't be revisited for decades) I can be prosecuted based on my remaining silent and Miranda be damned.
Anyone see a problem with this? Anyone see a remedy? Do I fail to give them my name and be arrested for failure to cooperate? Is failing to give them my name, when clearly I know my name, prosecutable because I attempted to deceive an officer of the law?
Where does this lead us?>>
Where does this lead us?>>
WHATEVER....KISS ANOTHER CONSTITUTIONAL RIGHT GOODBYE, AMERICANS!
THE GREAT SUPREME COURT HAS SPOKEN...
SO LET IT BE WRITTEN, SO LET IT BE DONE...OR, IN THIS CASE, UNDONE.
IS THE SUPREME COURT ALLOWED TO CHANGE THE BILL OF RIGHTS?
SCORE! SCORE FOR THE BUNCH IN THE LONG BLACK DRESSES!