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U.S. Supreme Court

Chemerinsky: Silence is not golden, Supreme Court says

Erwin Chemerinsky.

A person may not invoke the right to remain silent by being silent and not responding to police questions.

That seemingly oxymoronic statement was the holding in Salinas v. Texas, (PDF) which the U.S. Supreme Court issued June 17. The result is that unless a person explicitly invokes the right to remain silent in the face of police questioning before an arrest, prosecutors can use that silence as evidence of guilt at trial. The bottom line is that criminal defense lawyers should advise their clients to be explicit that they are invoking their right to remain silent whenever they wish to refuse to answer police questions.

Genovevo Salinas was questioned by the police in connection with a double murder. He was not under arrest and voluntarily answered questions from the police. He had turned over his shotgun and for most of the hour interview with the police officers responded to their questions, but when asked whether his shotgun “would match the shells recovered at the scene of the murder,” Salinas declined to answer.

When Salinas was prosecuted for the murders, the prosecutor used evidence of his silence in response to the police questions as evidence of his guilt. He was convicted and sentenced to 20 years in prison.

The Supreme Court, in a 5-4 decision, without a majority opinion, held that there had not been a violation of Salinas’ privilege against self-incrimination. Justice Samuel A. Alito Jr. wrote the plurality opinion, which was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy. The plurality said that the privilege against self-incrimination must be expressly invoked, which Salinas never did.

Justice Alito said that there are only two situations in which the right to remain silent exists without it being explicitly claimed: when a criminal defendant does not take the stand at trial, and when government coercion makes forfeiture of the privilege involuntary. Neither was present here and because Salinas did not expressly invoke the privilege against self-incrimination, the prosecutor could use his silence as evidence against him.

Justice Clarence Thomas, joined by Justice Antonin Scalia, concurred in the judgment and said he would have gone much further: he would have overruled the long-standing Supreme Court decision holding that prosecutors cannot use a defendant’s silence as evidence of guilt. In Griffin v. California, issued in 1965, the court held that the Fifth Amendment privilege against self-incrimination prohibits a prosecutor or judge from negatively commenting on a defendant’s failure to testify.

Allowing silence to be used against a defendant obviously would penalize, often enormously, the defendant’s invoking the constitutional privilege against self-incrimination. As Justice Stephen G. Breyer explained in his dissenting opinion, “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.”

But Justices Thomas and Scalia would overrule Griffin and allow prosecutors to use silence against defendants, whether in response to questions before or after arrest or even at trial. Justice Thomas said that the Fifth Amendment prohibits a person from being compelled to testify against himself and 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.”

Justice Breyer’s dissent was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Citing 1955’s Quinn v. United States, Justice Breyer stressed that the court long has held that “no ritualistic formula is necessary in order to invoke the privilege.” Justice Breyer said that in the context of the questioning of Salinas, his silence was likely to avoid answering questions that might incriminate him. Although not under arrest, he was questioned at the police station and was told that he was a suspect in the murders. Justice Breyer said that the issue in any case should be whether one can “fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege.”

The case is troubling because it is so divorced from reality. Most people don’t know that they have the right to remain silent when questioned by police during an investigation. And certainly most are unlikely to know that even if they have such a right, they must explicitly say, “I wish to invoke my right to remain silent.” Although the plurality rejects that there are any specific magic words that must be uttered, it seems fairly close to that because the suspect must unambiguously and expressly invoke the right to remain silent.

There is a profound irony to the plurality’s approach: exercising the right to remain silent by being silent is not sufficient to invoke that right. A defendant must speak in order to claim that right and likely must do so with exactly the type of “ritualistic formula” that the court has previously rejected.

Constitutional protections should not be just for those who have legal training and know what they need to say to the police to invoke their rights. From a common sense perspective, Salinas was penalized for exercising his constitutional right to remain silent in the face of police questioning. This should not be tolerated under the Fifth Amendment.

For criminal defense lawyers the lesson is clear: they must advise their clients who wish to remain silent to say so explicitly in all contexts. Otherwise, now, their silence before arrest in response to police questions can be used against them.

Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

Related articles:

ABAJournal.com: “SCOTUS: Silence can be used against defendant who didn’t claim privilege in voluntary meeting”

ABA Journal (April): “Court weighs whether a prosecutor can use a defendant’s refusal to answer a question”