SCOTUS to review Texas holding that defendant silence can be taken as 'substantive evidence of guilt'

Via SCOTUSBlog we learn that, "The Supreme Court agreed on Friday to decide a major case on the right to remain silent — a case testing whether that right exists for an individual who has not been arrested but is interviewed by police, and was not given Miranda warnings, when that silence was used to help prove guilt at a trial.  That case — Salinas v. Texas (docket 12-246) — was one of six new cases accepted for review." Here's a link (pdf) to the Texas Court of Criminal Appeals decision being challenged.

The Fifth Amendment to the United States Constitution states, “No person … shall be compelled in any criminal case to be a witness against himself.” The Court of Criminal Appeals acknowledged that, "The Supreme Court has held that a defendant’s Fifth Amendment right against compelled self-incrimination is violated if the State is allowed to impeach the defendant’s testimony by using his post-arrest, post-Miranda silence." But in Salinas they ruled that pre-arrest silence could be used for impeachment purposes.

So what does that really mean in practice? Essentially, said the CCA, prosecutors may argue in Texas courts that the act of remaining silent in the face of pre-arrest police questioning may "be admitted as substantive evidence of guilt."

While that stratagem would be disallowed in most of the country, "the Fourth, Eighth, and Eleventh Circuits, along with the States of Minnesota, Missouri, and Texas, have held that a defendant’s pre-arrest silence may be commented on by prosecutors and used as evidence of guilt at trial," according to a brief (pdf) filed with SCOTUS by the National Association of Criminal Defense Lawyers. NACDL cited SCOTUS' famous Miranda ruling, which included this example of how police might use a suspect's silence to improperly infer guilt. Imagine if a police officer said to the suspect:

Joe, you have a right to remain silent. That’s your privilege and I’m the last person in the world who’ll try to take it away from you. If that’s the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, ‘I don’t want to answer any of your questions.’ You’d think I had something to hide, and you’d probably be right in thinking that. That’s exactly what I’ll have to think about you, and so will everybody else. So let’s sit here and talk this whole thing over.

That line of questioning was quoted directly from the creators of the "Reid technique" of police interrogation, a version of which is still widely employed today (see prior, related Grits posts). As SCOTUS declared back in 1962, “[f]ew will persist in their initial refusal to talk . . . if this monologue is employed correctly,” but the court disallowed the tactic because it placed the defendant in a position where exercising a constitutional right would be used at trial to infer guilt.

So why would pre-arrest silence be any different? The NACDL brief applies the same hypothetical conversation with "Joe" from 1962 to the situation presented in the Salinas case:

The rationale of the decision below would allow for an even higher level of coercion. Suppose the officer continues, “Joe, you don’t have to answer my questions, but if you don’t, then that’s going to be used as evidence that you’re guilty. The prosecutor is going to stand in front of that jury and tell them that an innocent man would answer my questions. So you don’t need to talk to your lawyer, you need to answer my questions right now.”

Many would find this police conduct shocking and abusive. But the officer in this example is doing nothing more than correctly stating the law of the three circuits and three states which hold that there is no Fifth Amendment right to remain silent prior to arrest and that prosecutors can use a suspect’s silence as substantive evidence of guilt at trial.

That seems to me quite a strong argument. After all, as the NACDL brief remarked, “if the Government imposes a penalty upon an individual’s silence, then no 'free choice' exists and the suspect is compelled, in violation of the Fifth Amendment, to be a witness against himself.”

The Court of Criminal Appeals and respondents from the Harris County DA's office (see their brief [pdf]) argue that, in this case, the defendant came to the station house voluntarily and answered questions for nearly an hour, only refusing to answer one question: Whether ballistics testing would find the shotgun in his home a match to one used in a crime. However, even by the state's account, the questions asked in that first hour were about other possible suspects and the defendant only refused to answer when the questioning turned accusatory, showing police considered him a suspect. So naturally he only refused to answer "one question"; he ended the questioning after that!

The defendant was tried for murder, resulting in a mistrial when the jury could not reach a verdict. The state tried him again, this time putting much greater emphasis on the defendant's silence in response to questioning (he was convicted and sentenced to 20 years). Here's an excerpt from the prosecutor's closing argument quoted in the petitioner's request for SCOTUS to hear the case:

The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody – there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He didn’t respond that way. He didn’t say: No, it’s not going to match up. It’s my shotgun. It’s been in our house. What are you talking about? He wouldn’t answer that question.

To me, that's exactly the sort of prosecutorial argument the Fifth Amendment has historically been held to prevent. If that trial tactic is okay then the "right to remain silent" becomes utterly meaningless. Police need only pose their questions prior to arrest instead of arresting the suspect first and the entire issue becomes moot. Indeed, in this case, "After the interview, the police arrested [Salinas] on some outstanding traffic warrants to keep him at the station," according to the petitioner's brief, so the "non-custodial" aspect of the interview was really a fiction: The defendant was seemingly the only one who wasn't in on the gag.

Grits hopes the Supremes took this case in order to overturn the Texas decision, affirming in the pre-trial context their past position that, “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent . . . to a confession of guilt.” That's exactly what happened to Mr. Salinas and as long as the ruling stands, it turns a fundamental constitutional guarantee on its head.