Bell/Gaerte: 3 things to know about the right to silence after Salinas

Recently, the Supreme Court of the United States delivered a major blow to one of the bedrocks of a criminal suspect’s rights. In Salinas v. Texas, the court made clear that a suspect’s silence can be used against the suspect in instances when the silence is only exercised passively. 133 S. Ct. 2174 (2013).

In Salinas, the suspect was voluntarily speaking to the police about a murder. Id. at 2175. He was not in custody and had not been given a Miranda warning. Id. He answered some preliminary questions, but “fell silent” when officers pressed him about whether shotgun shells found at the scene would match the shotgun that he owned. Id. at 2175-2176. At his trial, over Salinas’ objection, the prosecutor argued that his silence in the face of that question was evidence of his guilt. Id. at 2176. The court found that this evidence and argument did not violate Salinas’ Fifth Amendment privilege against self-incrimination.

Here are the three things you need to know about the impact of the court’s decision in Salinas:

1. A suspect must speak up to remain silent.

When asked about the shotgun shells, Salinas said nothing. Id. at 2178. Instead, 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.” Id. Moments later, Salinas resumed answering questions. Id. Salinas’ attorney argued that his client’s silence in response to the question was most likely due to his assertion of his Fifth Amendment privilege against self-incrimination. The court rejected the argument and found that there were several reasons Salinas could have been silent, and that if he intended to exercise his Fifth Amendment right to remain silent he needed to say so. Id. at 2177. The court concluded that a suspect’s privilege against self-incrimination is not self-enforcing and he or she must now affirmatively “plead the Fifth” in response to an incriminating question he or she does not want to answer.

In other words, a suspect must speak up to remain silent. This seems counterintuitive, and the court’s ruling is one that many attorneys may not have predicted. In fact, four justices of our highest court disagreed that this should be the law. How does this translate to real life? Do most criminal suspects, innocent or not, know that they must “plead the Fifth” to assert their constitutional rights? On the day they are questioned, will they remember this lesson from civics class? Likely not. The practical reality is that many suspects who wish to remain silent and assert their constitutional rights will not properly do so, and their silence will be used against them.

2. The details of a suspect’s silence will now be litigated.

In a post-Salinas world, a prosecutor can comment on a suspect’s non-answer to a question. An issue in Salinas was why the suspect was silent, and the prosecutor in that case likely argued that the suspect’s biting of his lip instead of giving an exculpatory answer to the question demonstrated that he was guilty. If a prosecutor can comment on such things, can he or she also comment on whether a defendant stutters or pauses prior to expressly invoking his or her right to remain silent? Will such comments then force a defendant to testify at a trial when he or she would not otherwise do so in order to solely explain a speech pattern or the intent of his or her silence? Would that testimony open the door to cross-examination about the actual facts of the case? Time will tell. One thing is clear: In the future, silence and the reasons for it will be litigated and commented upon in court.

3. What’s my line, anyway? It is difficult to know.

This is a complex area of constitutional litigation that turns on narrow facts involving custodial versus non-custodial interrogations and whether an answer is incriminating or innocuous. The Salinas decision spawned an outcry from lawyers with vested interests on both sides of the issue. The opinion itself is a 5-4 decision, with the majority split 3-2. Lawyers will continue to debate the intricacies and impact of the decision in courtrooms throughout the country for years to come.

But what is a layperson expected to know with respect to his or her responsibility to invoke the right to remain silent? Justice Samuel Alito rejected the idea that the Fifth Amendment expresses an “unqualified right,” but when the rubber meets the road, what are the magic words? It seems clear that a suspect who verbalizes “I hereby assert my Fifth Amendment privilege to be free from self-incrimination” in response to a law enforcement officer’s question would be protected. What about the suspect who states something less “lawyer-ly,” such as “I’d rather not answer that”? Will the court cut that suspect some slack and conclude that the defendant’s intent to assert his right to silence was clear? Or will the court demand something more? If it is the latter, the practical reality may be that silence will be used to argue guilt in criminal courts in the future.•

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James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached via email at [email protected] or [email protected]. The opinions expressed are those of the authors.