The Supreme Court this week released another opinion holding that the plain language of the Bill of Rights means something other than what it says.
In Salinas v. Texas, and a (SURPRISE!) 5-4 decision the Court held that a prosecutor implying a suspect’s silence is evidence of guilt isn’t somehow violative of the 5th Amendment. The 5th Amendment states in full:
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
What’s the story? Man is named a suspect in a murder and is asked to come in to the station to answer some questions. He comes in willingly, answers some questions, then, when asked a particularly damning question, looks down at the floor and doesn’t answer. The prosecutor uses this as evidence of guilt to the jury.
What’d they decide? The majority opinion holds that a person must actively invoke their right to silence. Once again, the court comes to this bad decision because instead of treating the Constitution as the supreme law of the land, they are using their previous decisions to assault plain language by the telephone game known as the common law. According to Justice Alito, “It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection ‘must claim it'”. citing Minnesota v. Murphy, 465 US 420. Being silent by itself is not enough. This is extremely important to you, and I will explain why shortly.
The justification for this is that the police don’t know why you’re remaining silent if you don’t actively invoke your right. “To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else.”
…okay, I’m done laughing now.
According to Alito, “the Fifth Amendment guarantees that no one may be ‘compelled in and criminal case to be a witness against himself’; it does not establish an unqualfied ‘right to remain silent.’ A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a 5th Amendment claim.”
Alito is right — kinda. You don’t have a 5th amendment right to protect your friend. But the burden of proof to show why you’re remaining silent is on the state because for all practical purposes you cannot explain why you’re staying silent if you’re doing so to protect yourself without incriminating yourself. However, somehow in Justice Alito’s mind, if you actively invoke your 5th amendment right you aren’t doing it for any other purpose (like those quoted above) than to protect yourself.
Alito shows that he lives in the ivory tower by ignoring Petitioner’s concerns. “Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution. But as petitioner himself concedes, police officers ‘have done nothing wrong’ when they ‘accurately stat[e] the law.'” Again, that’s true. But let us be practical. An officer can now tell someone, “Hey, if you don’t answer our questions, we can use that against you in court.” But do you think that’s going to be followed by, “But if you tell us you’re invoking your 5th Amendment right to remain silent, we can’t.”? NO! Of course the cops aren’t going to tell you that.
Yet this is okay according to Scalia’s concurrence. “A defendant is not ‘compelled…to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence.” Apparently you are only compelled if the officer puts a gun to your head and tells you to answer the question. But it is hardly new for the Supreme Court to misunderstand what compulsion means. A Court Justice hasn’t been subject to a harsh interrogation since their confirmation hearing. But even in those hearings it’s all about saying you don’t have an opinion.
Why does this matter to me?
Okay, all is not lost. This was not what’s called a custodial interrogation. The defendant willingly went to the courthouse. So according to the Court the defendant was “free to leave at any time”. Again, I wonder how free the defendant felt to leave while sitting in a police station surrounded by armed men who were suspicious that he murdered someone. Until you are subject to a custodial interrogation (when a reasonable person doesn’t feel free to leave) you are not read your Miranda rights. That’s the first time you’re going to be advised of your right to remain silent. The Court vastly overestimates when they decide a reasonable person would feel free to leave.
I always tell people to listen to my little girl. She says, “No talk to cops”. Well, that didn’t work for the Defendant, did it? However, Salinas’s big mistake was going to the station in the first place. DON’T TALK TO COPS. Do not go to the station willingly. Make them come to you. And know your rights. Invoke your right. This decision is going to injure those that don’t know they have to invoke their right, assuming (rightly if you believe in the Constitution) that you don’t need to invoke them. Don’t be one of them.
According to Justice Breyer’s dissent, “This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime.” In other words, EVERYONE knows what the 5th Amendment means. Why? Because it’s obvious. The majority changing the meaning of the 5th Amendment means that those of us that KNOW what it means are going to be injured by our silence. Invoke your right friends.
Better yet, grab my card! Here’s a picture of the back side of it. Send me an email and I’ll send you one.
Tear off my number and hand the card to the officer. DON’T TALK TO COPS