This is the first in a two-part series of columns by Professor Colb. Part Two will appear here on Justia’s Verdict on Wednesday, February 13. –Ed.
Last month, the U.S. Supreme Court granted review in Salinas v. Texas, a case that raises what might seem like a very basic question about the Fifth Amendment: Does its guarantee of protection against compelled self-incrimination protect a suspect’s “right to remain silent” outside of the custodial setting? That is, does a suspect who has neither received any Miranda warnings nor is currently in custody have a right not to speak? In this column, I will examine this question and analyze whether, under existing precedents, the right to silence ought to receive the protection that the petitioner, Genovevo Salinas, seeks in this case.
In one respect, the question posed about the “right to remain silent” is misleading. Given that there is a right to avoid compelled self-incrimination just about whenever one is engaged in a conversation with the police or with other government agents, it necessarily follows that the police may not force a silent person to speak and answer questions that call for self-incriminating responses. Yet there is more to the asserted right to silence than the right not to be literally compelled (by threats of force) to say self-incriminating things. Readers may ask, what more is there?
Primarily, there is the question of what happens to a person who does choose to remain silent. Police cannot literally force anyone to say something that he chooses not to say. Speaking, unlike reflexive action, is a voluntary behavior undertaken in response to the available options. If one of the options is getting killed, of course, then we say that speaking is not “voluntarily” chosen, but that is actually a shorthand way of saying that it is morally and constitutionally unacceptable to threaten to kill someone as the alternative to his answering police questions. From a physiological standpoint, he does technically choose to speak, even in these circumstances.
By the same token, if “voluntary” meant “freely chosen without any inducement whatsoever from the police,” then virtually any incriminating response to a police officer’s questions would fail the test of voluntariness, because few suspects spontaneously approach a law enforcement officer and unload unsolicited incriminating disclosures. Yet, outside of custody, we consider most responses to police questions “voluntary” for Fifth Amendment purposes; we do not believe that the pressure inherent in an officer’s simply posing a question is sufficient to render the response a product of constitutionally impermissible “compulsion.”
The Facts of Salinas
Now consider the facts of the case before the Supreme Court. In 1992, police came to suspect Genovevo Salinas of murdering two men, Juan and Hector Garza. Pursuing a lead, police visited the home of Salinas’s parents, where he too resided, and received consent to search the home. During the officers’ visit, Salinas’s father handed over a shotgun to the police, and Salinas himself voluntarily accompanied the officers to the police station for an interview.
Police did not read Salinas any Miranda warnings, nor were they required to do so, as he was not in custody. For almost an hour, Salinas answered a series of questions that the police posed. At one point, however, Salinas became silent. Police had just asked him “if the shotgun [his father had given them] would match the shells recovered at the scene of the murder.” In response to this question, Salinas looked down and said nothing.
The police subsequently received a ballistics report that did identify a match between the casings from the murder scene and the shotgun from Salinas’s house. The State subsequently charged Salinas with two counts of murder. Police were unable to find Salinas to arrest and bring him to trial, however, for another fifteen years. The trial he did have then ended in a mistrial, and a second prosecution began.
In closing argument during Salinas’s second trial, the prosecution emphasized the fact that Salinas had remained silent when police asked whether the shotgun from his home would match the shells recovered from the murder scene. The government said the following to the jury:
“The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody—there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He didn’t respond that way. He didn’t say: No, it’s not going to match up. It’s my shotgun. It’s been in our house. What are you talking about? He wouldn’t answer that question.”
At the end of the second trial, the jury came back with a guilty verdict, and Salinas appealed. He claimed on appeal that the prosecution’s comment on the defendant’s silence unconstitutionally penalized Salinas’s exercise of his Fifth Amendment right to remain silent.
The Relevant Fifth Amendment Precedents
This case does not arise in a vacuum. The Supreme Court has decided numerous cases determining whether and when silence may be introduced as evidence against a criminal defendant without running afoul of the Fifth Amendment right against compelled self-incrimination.
For Salinas’s purposes, the most promising case is Griffin v. California. The Court there held that a prosecutor may not comment to a jury on the defendant’s failure to take the witness stand during his own criminal trial. The defendant, based on Griffin, thus has a right not only to remain silent at his trial but also to have the prosecutor refrain from asking the jury to draw any negative inferences from his silence.
The Court in Griffin concluded that expressly asking the jury to draw a negative inference imposes an unconstitutional cost on the defendant’s exercise of the right to remain silent and thereby pressures him to take the witness stand, notwithstanding his theoretical right not to. Justice Douglas said for the Court that “comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ [internal citation omitted] which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.”
Other precedents, perhaps more relevant to Salinas’s facts, address a defendant’s silence in the pre-trial investigation period. In Doyle v. Ohio, the Supreme Court held that when a defendant has been placed in custody and given Miranda warnings, his failure to speak may not be introduced in evidence at his subsequent criminal trial. The Court reasoned that, first, the Miranda warnings implicitly promise that silence will not be used against the suspect (by warning that giving up the right to silence will be used against him), and that, second, after the warnings have been given, a decision to remain silent is “insolubly ambiguous” and therefore cannot legitimately be offered in support of an inference that the suspect was admitting his guilt. After all, once advised that we have the right to remain silent, our silence may merely reflect our decision to take the advice we have received.
Jefferson Doyle thus experienced a violation of his Due Process rights when the prosecutor introduced evidence of what the defendant failed to say in custody in the wake of his warnings. Notably, the Court, in deciding Doyle, relied on Due Process rather than the Fifth Amendment right against compelled self-incrimination. This feature of Doyle is important, because it suggests that outside of the courtroom, remaining silent may not have the same Fifth Amendment status as it does inside the courtroom. Introducing post-Miranda silence at a criminal trial, in other words, may not unconstitutionally burden the right against compelled self-incrimination; it may instead only breach an implicit promise contained in the warnings and offer ambiguous evidence to signify something it may well not signify.
This distinction becomes important when we turn to two other pretrial silence cases, Jenkins v. Anderson, and Fletcher v. Weir. In Jenkins, the Supreme Court held that the prosecution could lawfully introduce into evidence a defendant’s failure to come forward prior to his arrest to tell the authorities of his alleged self-defense justification for homicide, a failure offered to impeach the credibility of the defendant’s trial testimony claiming self-defense. In Jenkins, the defendant had not received Miranda warnings and was not in custody at the time of his silence.
In Weir, the Supreme Court held that a defendant’s post-arrest silence prior to having received the Miranda warnings could also be introduced at trial to impeach the credibility of a self-defense/accidental homicide story that the defendant told as a witness on his own behalf. In both Jenkins and Weir, silence could come into evidence, in part because police had not implicitly promised otherwise (by giving warnings to that effect), and in part because the silence was offered to impeach the criminal defendant’s credibility rather than to affirmatively prove his guilt.
The defendant has, understandably, chosen to focus on the fact that the above cases involved the use of a defendant’s silence to impeach his credibility rather than to affirmatively prove his guilt. Impeachment use implicates the government’s interest in preventing perjury by the defendant, so it is conceptually distinct from the use of evidence to help demonstrate the defendant’s commission of the crime. Yet this distinction may not ultimately inure to the defendant’s benefit. Consider the impeachment use of otherwise inadmissible evidence in a different context.
Turn to the introduction of statements taken in violation of Miranda. Here, a police officer takes a suspect into custody and then fails to comply with the requirements of Miranda, by—for example—interrogating the suspect without first giving her the warnings. In such a case, the statements that the defendant makes in response to interrogation are inadmissible to prove her guilt, under the holding of Miranda itself.
Nonetheless, the Court ruled in Harris v. New York, if the defendant takes the witness stand and testifies in a manner that contradicts what she earlier said in response to the officer’s Miranda-violating interrogation (for example, by testifying “I am innocent,” after having admitted the crime under interrogation), her earlier statements are admissible, though only for the purpose of impeaching the credibility of her in-court declaration of innocence (not for the purpose of proving her guilt—got that?).
Yet a “compelled” statement, for purposes of the Fifth Amendment, made in or out of custody, would be suppressed completely, regardless of whether it is offered for impeachment or to prove guilt. Under a Supreme Court case called New Jersey v. Portash, even the impeachment use of compelled testimony violates the Fifth Amendment. The upshot of the contrast between permitting impeachment with unMirandized statements and prohibiting impeachment with truly compelled statements is telling: constitutionally “compelled” statements may not come into evidence, period.
If the Court is willing to admit evidence for impeachment purposes, it therefore follows that its exclusion in the State’s case in chief is something other than constitutionally required—it is, in the Court’s language, a deterrent instrument for motivating better governmental conduct outside the courtroom.
The distinction between constitutionally required exclusion and exclusion as a means of motivating police to behave better is important when we consider the introduction of the defendant’s silence in Salinas, the case now before the Supreme Court. The “compulsion” argument is that introducing the defendant’s silence at trial serves to impose a cost on the exercise of the suspect’s right not to answer an officer’s questions, much in the way that asking the jury to draw adverse inferences from the defendant’s failure to take the witness stand imposes a cost on the decision not to testify at trial.
The problem with this argument, however, is that introducing the silence for impeachment purposes also imposes a cost on the defendant’s exercise of the right to remain silent. (Indeed, it imposes an additional cost on the constitutional right to testify in one’s own defense.) Yet the Court has permitted that cost to be imposed in both Jenkins and Weir, thus signaling that the cost does not amount to “compulsion” under the Fifth Amendment, which would have altogether precluded its admission in evidence. It is difficult, moreover, to imagine a suspect making the following calculation: “I really want to remain silent. I know that my silence can be introduced against me for impeachment purposes. On the other hand, I know as well that my silence may not be used against me as affirmative proof of my guilt. Therefore, I feel empowered to remain silent, understanding that my silence is admissible only for impeachment purposes.”
Rather than assessing the relative costs on the defendant of different uses of the defendant’s silence, the Court’s decisions seem to reflect a cost/benefit analysis of excluding versus admitting evidence for different purposes, as a means of motivating police (rather than suspects) to behave in a particular way.
Part Two in this series will appear here on Justia’s Verdict on Wednesday, February 13.