Today, June 17, the U.S. Supreme Court issued its opinion in Salinas v. Texas. The gist of the opinion is that not saying anything is not an invocation of the right to remain silent guaranteed under the 5th Amendment. Yes, you read that correctly. It says that someone being questioned by police has to say the magic words, and actually take the formal action of invoking the right. This case says that a prosecutor can then actually comment on the silence in court!!
It is clear that once a person is arrested and the police start an interrogation, the Miranda warnings are (supposed to be) given. “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court . . . ” The Supreme Court has previously held that if a defendant elects not to testify at the trial, the prosecutor comment on that silence – the silence at trial, in the courtroom. This case says that the out-of-court silence can be used against the defendant in trial.
In an opinion by Justices Alito, Scalia, and Thomas, the SCUTOS did not tell us specifically (see below) whether or not the prosecutor can use silence outside the courtroom as evidence of guilt. The Court said a defendant who remained silent during police questioning and did not “formally” invoke the 5th Amendment right to remain silent, would in turn allow prosecutors to offer commentary to the jury on that silence in court. This decision now put the burden on the individual to invoke, not the government to not use the silence. That part of the decision is most troublesome. As the dissent notes, in the circumstances of the case, it was clear that the defendant was invoking his right to remain silent. . . by being silent. This is going to be particularly problematic for persons who who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. They may be trying to exercise a right, only to have their silence be argued to a jury; I can hear it now: “this defendant had an opportunity right then and there to tell the officers his side of the story, and didn’t.” Oh, boy, at the can of worms this is going to open.
As one commentator has said:
Surprisingly, the Court did not answer the primary question court watchers were expecting, which was whether a prosecutor can deride a person’s reliance upon the right against self-incrimination when that person has not been arrested. The Court said it did not have to reach that question because the person here, Salinas, never really properly invoked his constitutional right against self incrimination. And because he didn’t, there was nothing wrong with the prosecutor’s comments at his trial. This is a lousy ruling. . . . This is a bad day for the Bill of Rights.