Can Silence be Used Against You in a Criminal Trial? Sometimes

On June 17, 2013, the United States Supreme Court handed down its opinion in the case of Salinas v. Texas.  In this case, the Defendant, without being placed in custody or receiving any Miranda warnings, voluntarily answered some questions of a police officer questioning him about a murder.  The Defendant was silent, however, when he was asked whether ballistics testing would match his shotgun to the shell casings found at the site of the crime.  At his murder trial in a Texas court and over the objection of his attorney, the prosecution used the Defendant’s failure to answer the question as evidence of guilt.

On appeal, the State Court of Appeals and the Texas Court of Criminal Appeals affirmed the conviction, rejecting the Appellant’s claim that the prosecution’s use of his silence violated his Fifth Amendment right against forced self-incrimination.

Supreme Court Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, concluded that a Defendant’s claim of Fifth Amendment rights failed because he did not invoke the privilege in response to the officer’s question but, rather, just remained silent.  The Court found that a witness who desires the protection of the Fifth Amendment privilege against self-incrimination must claim that right.

Previously, the Court had recognized at least two exceptions to the concept that a privilege must be claimed.  The Court has recognized that a person charged with a crime need not take the stand and assert his rights under the Fifth Amendment before the jury.  Certainly, taking the stand and refusing to answer questions based on the Fifth Amendment would prejudice the Defendant.  Secondly, the Court has recognized that a person being questioned need not invoke his privilege against self-incrimination where the government’s coercion makes his forfeiture of the privilege involuntary.

In the Salinas case, the Defendant voluntarily accompanied the police to the scene of the crime and voluntarily answered questions.  He had not been given Miranda warnings, but he could have left the scene or the presence of the police officers at any time.  The prosecution commented as to his answers to questions and as to his silence in response to some other questions.

The Court rejected the idea that silence was most likely to result of invoking his constitutional rights.  The Court noted that the Defendant could be invoking his Fifth Amendment right or he could be trying to think of a lie, be embarrassed by the question or the answer he would have to give to it, etc. and, thus, his silence was ambiguous.

Is the Court’s requirement that the Defendant must invoke his Fifth Amendment right by saying he refuses to answer questions based upon his constitutional right workable?  Will most Defendants know what to do to exercise their constitutional rights?  Is this a case where educated or criminally sophisticated individuals use their rights and others will not know what to do?  Is this even more of a reason to get an attorney at an earlier stage of proceedings?  Does the law of the Commonwealth protect a Defendant in Pennsylvania in a state prosecution from similar comment?

It is further noted that the two Justices joined in the results of the case but for a different reason.  Justices Thomas and Scalia reasoned that the prosecutor, even if the Defendant had expressly indicated that he refused to answer because of his Fifth Amendment rights, would have been allowed to comment on his silence because silence is not a compulsion to testify.  That is, Justice Thomas and Justice Scalia believe that a prosecutor’s remarks about the Defendant’s pre-custodial silence did not compel him to give self-incriminating testimony and that is all that the Fifth Amendment guarantees.  The Court has held that a prosecutor cannot comment about a criminal Defendant’s failure to testify at trial.  Scalia and Thomas would not extend this right or protection to pre-custodial silence.

Justice Breyer, Ginsburg, Sotomayer and Kagan joined in a dissenting opinion.