Can The State Use Your Silence Against You If You Don’t Affirmatively Invoke Your Right To Remain Silent?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Salinas v. Texas, 570 U.S. __, 133 S.Ct. 2174 (2013).
This case addresses the following issue:
Can an individual’s silence in response to a question ever be used against the individual in a prosecution?
This case dealt with unusual and limited circumstances that allow the prosecution to use an individual’s silence in response to an officer’s question. Id. at 2178. When an individual is not in custody, but speaking with the police voluntarily, and fails to affirmatively invoke the privilege against self-incrimination, the prosecution is free to use silence to a direct question against the defendant. Id.
In this matter, the petitioner was a guest at a party. Id. The next night, both the hosts of the party were killed. Id. The petitioner voluntarily went with the police for questioning, where he was interrogated for about an hour. Id. The petitioner answered several questions, with the exception of whether petitioner’s shotgun would “match the shells recovered at the scene of the murder.” Id. Petitioner simply remained silence in response to this question until asked another question by the officer. Id. Petitioner was later charged with murder, and the prosecution “used his reaction to the officer’s question…as evidence of his guilt.” Id.
The Court begins by stating “we have long held that a witness who desires the protection of the privilege [to remain silent] must claim it at the time he relies on it.” Id. at 2179. This has been subject to only two exceptions. Id. First, that privilege need not be asserted at trial. Id. Second, the government may not coerce an individual into forfeiting the privilege involuntarily. Id. at 2180. The classic example of this is a custodial interrogation, where a suspect only forgoes the privilege when “he fails to claim it after being suitably warned.” Id. However, any “form of official compulsion [that] denies [a defendant] a free choice to admit, to deny, or to refuse to answer” is sufficient under this second exception. Id.
The Court found that there was no such compulsion in the case of a voluntary interview with police. Id. The Court also rejected a proposed suggestion for new exception offered by petitioner: standing mute properly asserts the right to remain silence. Id. at 2181-83. However, a witness standing mute would be out of line with the Court’s precedents regarding actually remaining silent as sufficient to invoke the Fifth Amendment’s right. Id. at 2181. This is because “it is settled that forfeiture of the privilege of self-incrimination need not be knowing” and the Court found “no good reason to approach a defendant’s silence any differently.” Id. at 2183.
It is worth noting that the decision of the Texas Supreme Court and the question to which cert was initially granted was a bit different than the question the Court ultimately answered here: does commenting on non-custodial interrogation silence even constitute compelling self-incriminating testimony? Id. at 2184 (concurrence). Two justices would have held it does not, just as the Texas Supreme Court had done. Id. However, that issue remains open for another a case.
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