Tuesday, June 18, 2013

The Right To Remain Silent? Or Is It. The Bastardisation of the fifth amendment.

U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia)
Do You Have A Right to Remain Silent? Thoughts on the "Sleeper"
Criminal Procedure Case of the Term, Salinas v. Texas

Orin Kerr . June 17, 2013 8:11 pm

This morning the Supreme Court decided a very important criminal
procedure case, Salinas v. Texas, by a 5-4 vote. I'm guessing that you
haven't heard of Salinas. And it probably won't get much attention in
the press. But it should: Salinas is likely to have a significant
impact on police practices. And it's a fascinating case for legal
nerds, too. So I thought I would explain the issue in Salinas and
offer some thoughts on why it matters and what it might mean.

I. A Brief History of Fifth Amendment Protections

To understand Salinas, you need to know a little bit of Fifth
Amendment history. Before 1965, the Fifth Amendment right against
self-incrimination had been interpreted pretty consistently to provide
only a relatively narrow right. Under the pre-1965 cases, the Fifth
Amendment only gave you a right to decline to answer the government's
questions when asked a question under the threat of judicially-imposed
punishment and when you formally asserted the right. Imagine you're a
witness called to the stand in a criminal case. If you don't answer
the prosecutor's questions, you can be held in contempt of court and
jailed. Under the Fifth Amendment, if you have a reasonable belief
that the answers to the prosecutor's questions will implicate you in a
crime, you can "plead the Fifth" and not have to answer the questions.
Under that pre-1965 view, all the Fifth Amendment does is let you
assert your right ex ante to get out of answering a question when
otherwise the law would force you to answer it under threat of legal
penalty. (The thinking as to why you need to assert the privilege is
that only the suspect knows when his answer would be
self-incriminating; the suspect needs to assert the privilege so a
judge can step in at that point and assess whether the privilege

Two cases in the mid-1960s made important cracks in that doctrinal
edifice. First, in Griffin v. California, 380 U. S. 609 (1965), the
Supreme Court held that the Fifth Amendment did not permit the
government to comment on the defendant's failure to testify at trial.
Pre-Griffin, if the defendant chose not to testify, the prosecutor
could argue that the defendant's silence showed his guilt. (After all,
an innocent person wrongly charged with a crime surely would want to
explain his innocence to the jury, right?) Griffin reasoned that it
would gut the Fifth Amendment if the prosecutor could argue that
silence was guilt; the defendant would in effect be forced to testify
to avoid that adverse inference. So the "spirit" of the Fifth
Amendment barred commenting on the failure to testify even though the
defendant did not formally plead the Fifth and was not compelled to
speak by force of law.

The second case that cut against the traditional understanding of the
Fifth Amendment was Miranda v. Arizona, 384 U.S. 436 (1966), just a
year after Griffin. Miranda is the famous "right to remain silent"
case, and it held that before the police can admit a defendant's
statement during a custodial interrogation, the police must first
inform him of his rights and then obtain a waiver of his rights. The
reasoning of Miranda was that custodial interrogation was special.
When a person was in custody and was questioned by the police, the
environment was so coercive that the Court needed a set of special
protections (the warnings and waiver) to ensure that the answers to
police questions were voluntary and not coerced.

The complex set of rules announced in Miranda was justified as a way
of protecting the Fifth Amendment right. But the fit has always been
awkward. Indeed, Miranda was actually argued as a Sixth Amendment
case, not a Fifth Amendment case; it was a surprise to everyone when
the Court announced that the Miranda rules were part of the Fifth
Amendment. And the Court has struggled to find the right place for
Miranda in constitutional caselaw ever since. Miranda was a strange
fit for the Fifth Amendment because it didn't fit the classic
requirements of a Fifth Amendment right. It applied to police
interrogation when there was no threat of judicially-enforced
punishment, and it didn't require a defendant to assert his right. To
the contrary, the rights automatically existed in custodial
interrogation unless they were formally waived. Nonetheless, the Court
announced the Miranda rules as a prophylactic set of protections for
"real" Fifth Amendment rights (a characterization the Court stayed
with in Dickerson v. United States, 530 U.S. 428 (2000)). And in
Footnote 37 of Miranda, the Court included dicta extending the Griffin
rule to custodial interrogation:

In accord with our decision today, it is impermissible to penalize an
individual for exercising his Fifth Amendment privilege when he is
under police custodial interrogation. The prosecution may not,
therefore, use at trial the fact that he stood mute or claimed his
privilege in the face of accusation. Cf. Griffin v. California, 380
U.S. 609 (1965)

So after 1966, we have essentially two ways of thinking about the
Fifth Amendment right against self-incrimination. The first way is the
classic pre-1965 approach, in which a defendant must formally plead
the Fifth and has a right only when facing the threat of judicially
imposed punishment. The second way is the Griffin/Miranda approach,
which takes a broader view of the right and considers that would
undermine a person's ability to control when they speak in ways that
might incriminate themselves.

II. What Is the Right to Remain Silent?

You can see the tension between these two views if you think carefully
about Miranda's famous requirement that the police must tell a suspect
that he has a right to remain silent. The right to remain silent
sounds like a bedrock principle, and everyone knows about it. And the
Court was clear that this right was supposed to be a way of expressing
the Fifth Amendment privilege. See Miranda, 384 U.S. at 467-68. But it
has always been a bit of a puzzle as to exactly what this warning was
supposed to mean. What does it mean to say that a person has a "right
to remain silent"?

In particular, "right" in what sense? In the narrow sense that the law
cannot hold you liable for a crime if you plead the Fifth, as the
Fifth Amendment had traditionally been interpreted? Or "right" in the
broader sense that your silence can't be used against you by the
prosecution to gain any advantage, which was the gist of Griffin and
was extended to interrogations in Miranda? Miranda doesn't say. It
requires the police to tell people that they have a right to remain
silent, but it doesn't tell us what that right means or when it is

III. Salinas v. Texas

That brings us (finally) to the new case, Salinas v. Texas. Salinas
agreed to accompany the police to the stationhouse to be interviewed
about a murder. Once there, he answered a lot of the officer's
questions. But then Salinas was asked a particularly incriminating
question: Would the shells from his shotgun match the shells found at
the murder scene? Salinas "looked down at the floor, shuffled his
feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began
to tighten up." After a few seconds of silence, the officer moved on
to other questions. At trial, the government argued that Salinas had
committed the murder based in part on his response to the question
about the shotgun shells. The prosecutor argued to the jury that an
innocent person would have said, "What are you talking about? I didn't
do that. I wasn't there." But Salinas didn't do that; he remained
silent. And that suggested guilt. Notably, Miranda's footnote 37
didn't apply because Salinas was not in "custody" for Miranda
purposes. He was at the stationhouse voluntarily, not by force, so
Miranda didn't apply. The question before the Court was whether the
government was allowed to argue about the significance of the
defendant's pre-arrest silence to the jury.

The Supreme Court divided 5-4 on the question, with the majority
dividing 3-2. The controlling opinion under a Marks analysis is the
plurality opinion by Justice Alito joined by Chief Justice Roberts and
Justice Kennedy. Justice Alito concluded that it did not violate
Salinas's Fifth Amendment right to comment on his silence because he
never formally asserted his Fifth Amendment right. In Alito's view,
the pre-1965 approach to the Fifth Amendment was the standard approach
to the Fifth Amendment, and Griffin and Miranda were two exceptions
from this norm. Thus the issue was whether pre-Miranda silence should
be governed by the usual rule that the defendant must formally assert
his Fifth Amendment right to have that right or the Griffin/Miranda
rule that he does not need to do so. In the majority's view, the usual
rule applied because Griffin and Miranda dealt only with specific
contexts. At trial, the defendant has an absolute right not to
testify, which explains Griffin, and the coerceiveness of custodial
interrogation "makes his forfeiture of the privilege involuntary,"
explaining Miranda. No such special circumstances existed in the
non-custodial non-trial interview of Salinas.

According to the plurality, then, the defendant was required to
formally assert his Fifth Amendment privilege. When the officer asked
Salinas whether the shot gun shells would match those at the crime
scene, Salinas shouldn't have paused and shuffled his feet. Rather, if
he wanted to rely on his right to remain silent, he had to say
something that clearly asserted his right. The plurality isn't clear
on exactly how clear is clear enough to formally assert a Fifth
Amendment right in the informal context of a police interview. I
gather something like "I plead the Fifth" or "I assert my right to
remain silent" would do it, but the opinion isn't clear.

Justice Thomas penned a short 2-page concurrence joined by Justice
Scalia. Justices Thomas and Scalia think that Griffin was wrongly
decided. When a prosecutor comments on a defendant's failure to speak,
Thomas reasoned, the government is not actually forcing him to be a
witness against himself. Thus the Fifth Amendment shouldn't apply. (As
an aside, Justices Scalia and Thomas would overturn Miranda entirely.)

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor and
Kagan. Justice Breyer's basic argument uses the basic reasoning of
Griffin and Miranda:

To permit a prosecutor to comment on a defendant's constitutionally
protected silence would put that defendant in an impossible
predicament. He must either answer the question or remain silent. If
he answers the question, he may well reveal, for example, prejudicial
facts, disreputable associates, or suspicious circumstances-even if he
is innocent. See, e.g., Griffin, supra, at 613; Kassin, Inside
Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc.
525, 537 (2009). If he remains silent, the prosecutor may well use
that silence to suggest a consciousness of guilt. And if the defendant
then takes the witness stand in order to explain either his speech or
his silence, the prosecution may introduce, say for impeachment
purposes, a prior conviction that the law would otherwise make
inadmissible. Thus, where the Fifth Amendment is at issue, to allow
comment on silence directly or indirectly can compel an individual to
act as "a witness against himself "-very much what the Fifth Amendment

Under Breyer's view, commenting on Salinas's silence violated his
Fifth Amendment right because the circumstances "give rise to a
reasonable inference that Salinas' silence derived from an exercise of
his Fifth Amendment rights."

IV. Why Salinas Matters

Salinas resolves a very deep circuit split involving a long-fuzzy area
in the law of police investigations. I suspect that its green light to
comment on pre-arrest silence impact will have a significant impact.
That's true for a few reasons.

First, it is relatively easy for the government to claim that a
suspect's reaction to an incriminating question suggests guilt - and
very hard for a defendant to challenge that characterization. Over the
course of a long interview, the investigator might ask dozens or
hundreds of incriminating questions. If the case goes to trial, a
smart prosecutor will ask the investigator if he thought that any of
the ways the defendant reacted to the questions was a non-answer or
pause that seemed to reflect an awareness of guilt. If the prosecutor
can comment on a non-answer, presumably the prosecutor can also
comment on a pause before an answer. The prosecutor will then ask
about that during the direct examination, and the investigator will
give his view that the defendant paused or looked nervous or declined
to answer particular questions. The prosecutor can then focus on that
before the jury, and there's not much a defendant can do in response.
Taking the stand would require the defendant to testify and let in
adverse facts like prior crimes, which most defendants won't want to
do. So the government's characterization will be tough to challenge,
even if the investigator is being unfair in his characterization of
the defendant's acts.

Second, as a practical matter, it seems unlikely that a person
questioned by a police officer outside of custody is going to formally
assert his Fifth Amendment right. Most people are not lawyers, and
they don't think in terms of legal formalities. And outside of
custody, the police don't have to give warnings or talk about the law.
They don't have to mention the right to remain silent and ask a
suspect to waive it, knowing that the suspect can later change his
mind. They don't need to bring it up at all. And that means that they
can construct the conversation in the kind of way that makes it
extraordinarily awkward for a person to play lawyer and assert his
Fifth Amendment privilege. Of course, a really smart suspect will just
say that they're busy so they don't have time to talk to the police at
all. ("I just can't schedule you in anytime soon. How is 2017 for
you?") But the suspect who mistakenly thinks he can talk his way out
of trouble may be in for a surprise.

V. How Will Salinas Work in Practice?

Finally, I have two major questions about how Salinas is supposed to
work in practice. The first question is obvious: How clear an
invocation of the Fifth Amendment right does it need to be? In
Berghuis v. Thompkins, the Supreme Court said that a suspect who has
been told about his right to remain silent during questioning needs to
unambiguously assert that right for it to trigger the "downstream"
Miranda rules that require the police to stop questioning and leave
the suspect alone. But at least the suspect who has been told he has a
right to silence may remember that right he has been told about and
may invoke it. It's somewhat less clear what will count as a
successful invocation under the Fifth Amendment pre-arrest sans
Miranda. Pre-arrest, the person has not been told that they have any
rights. How clearly do they need to identify them to count?

Second, and perhaps more interestingly, it's unclear to me what is
supposed to happen when a suspect outside of custody clearly asserts
his Fifth Amendment privilege. Recall that under the pre-1965 caselaw,
a suspect only has a Fifth Amendment right against self-incrimination
when 1) he asserts his right formally and 2) a failure to answer would
subject him to punishment under the law. A judge then is called in to
rule on the assertion, and the judge either rules that the suspect has
to answer the question or not. Salinas deals with part (1); it tells
us that the Fifth Amendment privilege in the pre-arrest questioning
has to be asserted. But I wonder, why does that even matter given that
the second requirement won't be met? And why does it matter when a
judge isn't going to be called on to review the assertion of the
privilege and the suspect isn't going to be compelled to answer the

A comparison with Miranda is instructive. The theory of Miranda was
that in custodial interrogation, the coercive pressures of
interrogation are so great that they're akin to a threat of legal
punishment. The puzzling line from Miranda was this: "As a practical
matter, the compulsion to speak in the isolated setting of the police
station may well be greater than in courts or other official
investigations, where there are often impartial observers to guard
against intimidation or trickery." And to deal with the fact that
there is no judge present, Miranda had to create a set of rules for
what happens when a suspect asserts his right: In lieu of a judge
stepping in and evaluating the assertion, the questioning has to stop.
Whether you think these Miranda rules are sensible or conjured out of
thin air - or both - presumably the same won't be true outside of
custody. And that creates a puzzle. If the defendant doesn't actually
have a Fifth Amendment right not to answer a question because an
answer would not be "compelled" as it is understood in Fifth Amendment
caselaw, what difference does it make if the defendant asserts his
Fifth Amendment privilege? The classic reasoning of the pre-1965
caselaw tells us that the defendant has no Fifth Amendment privilege
to assert at that point. What are courts supposed to do when a suspect
asserts a privilege he doesn't actually have? And what are the police
supposed to do when that happens?

I can imagine a few different answers to these questions. First,
courts might create some sort of Griffin-like rule just for pre-arrest
questioning. That is, they might say that the police can't comment on
an assertion of Fifth Amendment privilege in that setting (even though
there is no traditional Fifth Amendment privilege to assert) in order
to ensure that the Fifth Amendment right is fully respected. Maybe
they'll throw in a bit of Miranda-like reasoning, too, and hold that a
formal assertion of the Fifth Amendment right requires the police to
stop questioning. Perhaps. But on the other end, the courts might say
that an assertion of the Fifth Amendment right when there is no actual
Fifth Amendment right at stake is entitled to no special treatment. In
that case, the defendant would be allowed to formally assert his Fifth
Amendment right but the prosecution would be free to comment on it as
indicating guilt.

http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/  Link to original story.

What The Fifth Amendment Says;

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

  And the Supreme Court is doing us a favor how?  Read the above again, No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.  The above article is nothing more than the bastardisation of your real rights.  Know your rights or allow idiots like the above writer, Orin Kerr, to take them away as well as keeping an eye on the Supreme Court judges to ensure they are not misinterpreting the real fifth amendment.  You do have the right to remain silent and not have it used against you.

  Did you notice the article did not contain the actual wording of the fifth amendment?  Wonder why?  Now you know.


The Fifth Amendment protects witnesses from being forced to incriminate themselves. Incriminating oneself (or another person) is defined as exposing oneself to "an accusation or charge of crime," or as involving oneself (or another person) "in a criminal prosecution or the danger thereof."[34] The privilegeagainst compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself. ... "[35] To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" leads a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."[36]
Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.[37][38]
The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England.[39] Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was considered guilty.[39] SuspectedPuritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly used to compel "cooperation." Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with 13 demands, third of which was the right against self-incrimination in criminal cases. These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.
Protection against self-incrimination is implicit in the Miranda rights statement, which protects the "right to remain silent." This amendment is also similar toSection 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth of Nations countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important right inherited from common law, and is protected in the New Zealand Bill of Rights Act and in Australia through various federal and state acts and codes governing the criminal justice system.
The Supreme Court has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."[40]

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