U.S. Supreme Court: Silence not enough to invoke 'Miranda' right

By Kimberly Atkins

Dolan Media Newswires

In a major ruling Monday on the breadth of pre-arrest Miranda protections, the U.S. Supreme Court held in a splintered decision that the silence of a person being voluntarily questioned by police can be introduced at trial if the subject did not specifically assert his or her right to remain silent to police.

"It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it,'" wrote Justice Samuel A. Alito Jr. in his plurality opinion in the closely watched case Salinas v. Texas, citing case precedent. "[A] witness does not do so by simply standing mute."

The case involves the pre-arrest questioning of a Texas man in connection with a murder case. The subject, who was not under arrest and had voluntarily come to the police station to be questioned, was not given a Miranda warning before questioning began.

After responding to several questions, the witness was asked by police if a gun found in his home would match the shotgun shells found at the crime scene. According to police, the witness sat silent, looked at the floor, bit his bottom lip and clenched his hands.

He was ultimately arrested and charged with murder. At trial prosecutors offered evidence of his silence and demeanor during police questioning, and argued during closing arguments that an innocent person would have answered the question.

The defendant was convicted of murder, but appealed, arguing that the evidence of his silence violated his Fifth Amendment right against self-incrimination. The Texas Court of Criminal Appeals affirmed, holding that pre-arrest silence is not protected by the Fifth Amendment.

In a 5-4 decision, the U.S. Supreme Court affirmed. In his plurality opinion joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, Alito declined to create a new exception to the invocation requirement for when a witness simply remains silent, reasoning that it would "needlessly burden the Government's interests in obtaining testimony and prosecuting criminal activity."

The opinion also rejected the defendant's argument that a ruling in the government's favor would disadvantage witnesses who are unschooled in the legal particulars of Fifth Amendment rules.

"[P]opular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be 'compelled in any criminal case to be a witness against himself'; it does not establish an unqualified 'right to remain silent,'" Alito wrote. "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 Fifth Amendment claim."

Justice Clarence Thomas, in a concurrence joined by Justice Antonin G. Scalia, wrote that "there is a simpler way to resolve this case."

"In my view, [the defendant's] claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his pre-custodial silence did not compel him to give self-incriminating testimony," Thomas wrote.

In a dissent joined by the three remaining justices, Justice Stephen G. Breyer wrote that he would have ruled that "the Fifth Amendment here prohibits the prosecution from commenting on the [defendant's] silence in response to police questioning."

"To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament," Breyer wrote. "He must either answer the question or remain silent. ... 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.'"

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Published: Thu, Jun 27, 2013