Supreme Court Permits Prosecution To Comment on Defendant’s Silence

A divided Supreme Court held that prosecutors may argued that a defendant’s un-Mirandized reaction to an officer’s question can suggest guilt.

The case is SALINAS v. TEXAS, No. 12–246 (Decided June 17, 2013).

The case began in 1992 when two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene.

The defendant had been a guest at a party the victims hosted the night before. He agreed to hand over his shotgun to the police for ballistics testing and to accompany police to the station for questioning.

The defendant was not read Miranda warnings. See Miranda v. Arizona, 384 U. S. 436 (1966).  The defendant answered the officer’s questions until he was asked whether his shotgun “would match the shells recovered at the scene of the murder.” At that time, he “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” At his trial, prosecutors used his reaction to the officer’s question as evidence of his guilt.

Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, found that no the prosecutor’s action was legitimate because the defendant never asserted his right to remain silent. Justice Alito suggested that it was “undisputed that [the defendant’s interview with police was voluntary.”

Justice Alito noted that “a defendant normally does not invoke the privilege by remaining silent.”  He also rejected the idea that there is a difference between silence and the failure to invoke the privilege before making incriminating statements. “A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.”  He explained:

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. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment.

One of the issues ties in to whether a person “unschooled in the particulars of legal doctrine” could be expected to invoke his right to remain silent.  This is an issue I wrote about in a law review article I wrote a few years ago, when I suggested that the Supreme Court is more willing to take the criminal justice experience of defendants into account.  Frequent Flyers at the Court: The Supreme Court Begins to Take the Experience of Criminal Defendants into Account in Miranda Cases.  A .pdf is here.

Justice Thomas, joined by Justice Scalia, suggested that even if the defendant had invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.  In his view, cases holding that 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 should not be extended.

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