You have a right to remain silent, but only if you speak

Terrible split SCOTUS decision in Salinas v. Texas. From now on, simply remaining silent in the face of police questioning is not enough to invoke one's Fifth Amendment rights. Under this ruling, one has to specifically say that's what you're doing. So you still have a right to remain silent, theoretically, but only if you speak. See the opinion recap from SCOTUSBlog and past Grits coverage.

Does the 'right to remain silent' require silence or 'magic words'?

On Wednesday, the US Supreme Court heard oral arguments in Salinas v. Texas (see prior Grits coverage) in which the Texas Court of Criminal Appeals ruled that prosecutors may argue that silence in response to questioning demonstrates guilt if the questions were asked prior to the defendant being taken into custody and read their Miranda rights. Here's a link to the transcript (pdf) and the TXCCA opinion being challenged.

At SCOTUSBlog, Lyle Dennistron suggested that, "If the sentiment that seems to run high in a Supreme Court hearing dictated how a case would come out, the Justices might well be on their way to declaring that the Constitution forbids prosecutors from telling juries that a suspect’s silence when talking to police in any criminal investigation means he is guilty."

In technical legal terms, [Stanford Law Prof. Jeffrey] Fisher was arguing that, in the pre-arrest context, when an individual is being questioned, the suspect should not have to explicitly claim the Fifth Amendment privilege in order to keep his silence in response to a damaging question from being used against him.

The state of Texas, with the support of the federal Department of Justice, told the Court that in no situation before trial should the Fifth Amendment privilege apply unless the individual explicitly, or by strong implication, says something to claim that right.   While no prior precedent of the Court settles whether the Fifth Amendment does or does not apply in that circumstance, the Texas lawyer at the lectern Wednesday, Alan K. Curry, encountered a largely skeptical Court in reaction to his plea for such a flat limitation of Fifth Amendment rights.

Curry argued that, if an individual does not invoke the Fifth Amendment, then silence in response to a specific police question about the crime should be open to the prosecutor to use against the individual at the trial.

The debate seemed to center on whether a defendant must specifically utter "magic words" to invoke their Fifth Amendment right or whether merely exercising the right, as opposed to invoking it, is enough to secure the privilege. Fisher argued that requiring such magic words amounts to "nothing more than a trap for the unwary, who is told, through culture and learning, that he has a right to remain silent." Mr. Salinas, he said, did the "one thing that is consistent with his right, which is exercising it," and so the state should not be able to "walk into court and say, because he remains silent, he's guilty of a crime; jury, you should conclude he's guilty of a crime."

That's exactly what happened in this case. Police questioned Salinas for nearly an hour about other possible suspects, but he turned mute and refused to answer once they began asking questions that indicated they considered him a suspect, in particular whether ballistics would match a shotgun he owned to shell casings found at the crime scene. Here's an excerpt from the Harris County prosecutor's closing argument that's in dispute:

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. 

If the the defendant had either a) been in custody or b) expressly stated "I invoke my Fifth Amendment right to remain silent," even the state granted that the prosecution's closing argument would have been improper. The state's argument hinged on a distinction between custodial and non-custodial interrogations, hanging their hats on the fact that past SCOTUS precedents dealt solely with questioning while in police custody.

In a preview of the case, SCOTUSBlog laid out (and linked to) the key court precedents relied upon by the state, but as Mr. Fisher pointed out those were instances where the defendants' silence on particular questions was used to impeach their testimony after they'd chosen to take the stand at trial. I hope Denniston is correct in his tea-leaf reading and SCOTUS extends Fifth Amendment protections to pre-custodial interrogations. IANAL but the idea seems like a no-brainer to me.

Benchslap: 5th Circuit says CCA 'unreasonably applied' 5th Amendment case law

At the Austin Chronicle, the indefatigable Jordan Smith reported on three recent Texas capital murder convictions overturned by appellate courts. Two of them were discussed on Grits last week, but the third one out of the Fifth Circuit was also notable. They found that a 5th Amendment violation the Texas Court of Criminal Appeals had deemed "harmless error" was not, in fact, so harmless. Instead, the appellate court declared that the CCA "unreasonably applied the clearly established federal law." Moreover, "The evidence of guilt in this case was not overwhelming, and there was substantial evidence supporting acquittal." Judge Priscilla Owen, unsurprisingly, dissented. See Smith's account of the case below the jump:

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.

Questions you can't ask a probationer in Fort Worth

Liberty and Justice for Y'all alerts us to a potentially momentous decision out of Fort Worth's Second Court of Appeals which found that probationers retain their Fifth Amendment right against self-incrimination, a decision which likely contradicts the day-to-day practices of probation departments statewide. According to LJ4Y:

In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:

1. "Since you have been on probation, have you violated any of its conditions?";
2. "Since you have been on probation, have you had sexual contact with any persons younger than 17?";
3. "Since you have been on probation, have you tried to isolate and child for sexual purposes?"; and
4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"

The court agreed that violating the probationer's bond for refusing to answer those questions violated his Fifth Amendment right against self-incrimination. Extraordinary! Key to the court's reasoning (from pp. 7-8 of the opinion):

The Texas legislature has explained that the purpose of the communitysupervision statute is to remove “from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems ofcommunity supervision in the public interest.” Tex. Code Crim. Proc. Ann. art. 42.12, §1 (Vernon Supp. 2009) (emphasis added). Thus, the trial court’s broad authorityto create community supervision terms does not extend to imposing terms thatviolate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.

Questions related to probation violations or the offense for which the probationer was convicted are still fair game, but "if a condition of a defendant’s probation requires the defendant to admit to anoffense that could lead to criminal charges independent of those that the defendant is serving probation for, the defendant has a Fifth Amendment right to not answer such questions."

Who knows whether the Texas Court of Criminal Appeals might ultimately hear this case or how that divided court might rule? But for now, at least in Fort Worth, the Fifth Amendment to the US Constitution still applies to probationers. Who'da thunk it?

If the Texas high criminal court did reverse the 2nd Court of Appeals, it might set the CCA up for yet another showdown with SCOTUS. The Cowtown appellate court relied primarily in its ruling on a US Supreme Court case from 1984, Minnesota v. Murphy, in which SCOTUS held that:

A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant isimprisoned or on probation at the time he makes incriminatingstatements, if those statements are compelled they are inadmissible ina subsequent trial for a crime other than that for which he has been convicted. . . . .'

If [a defendant asserts Fifth Amendment rights], he “may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time beingassured that neither it nor its fruits may be used against him” in asubsequent criminal proceeding.

I don't know what the precedents are in other Texas appellate jurisdictions, but this ruling seemingly would alter quite a few common practices at Texas probation departments if it were applied statewide. Indeed, it will be interesting to track what will be the impact within the jurisdiction of Texas Second Court of Appeals.