This is Part Two in a two-part series of columns. Part One in the series appeared here on Justia’s Verdicton Wednesday, February 6. –Ed.
In Part One of this two-part series of columns, I took up the case of Salinas v. Texas, which raises the question whether a suspect has the right to remain silent in response to non-custodial and non-Mirandized police questioning, such that his silence is barred from introduction at trial as affirmative proof of his guilt. I discussed Griffin v. California, Doyle v. Ohio, Jenkins v. Anderson, and Fletcher v. Weir, as they bear on the admissibility of silence under various conditions. I then turned to the difference between New Jersey v. Portash and Harris v. New York, as revealing that if evidence is admissible for impeachment purposes, then its exclusion in the prosecutor’s case in chief represents an effort to deter police misbehavior outside the courtroom, rather than a constitutionally mandated suppression. This fact could prove fatal to Salinas’s claim.
In Salinas’s case, the police did not misbehave in any way. They asked Salinas to come to the police station for questioning, and he agreed to accompany them. They proceeded to ask Salinas questions, which he answered freely, of his own accord. They then asked a question about whether the shotgun from his home would match the shells recovered from the murder scene. He did not answer, but instead became quiet and looked down. Though it was not in itself dispositive of guilt, his reaction seems incriminating. Why would we want to penalize the police, by suppressing this incriminating evidence, when they did nothing wrong?
The Other Side
One argument for suppressing Salinas’s silence is that we ought to treat every suspect as though he or she has received Miranda warnings, because we are all so familiar with the warnings. This is not a Fifth Amendment compelled-self-incrimination argument so much as it is a Doyle Due Process argument. Under Doyle, a person’s silence is always “insolubly ambiguous,” because he may simply be reacting to the fact that he has, and knows that he has, a “right to remain silent,” rather than exposing through his silence his consciousness of guilt. If everyone is like Doyle, because of our nearly-universal familiarity with the Miranda rights, then it follows that Salinas’s silence tells us little or nothing about his guilt or innocence.
To take this position, however, would seem to call into question the Court’s decisions in Jenkins and Weir, both of which relied on the lack of Miranda warnings to conclude that the defendant’s silence meaningfully contradicted his later statements at trial. If silence were always ambiguous (because of the ubiquitous knowledge of Miranda), then how could silence in those cases have been considered inconsistent with later trial testimony?
A second argument for suppression of the fact of the defendant’s silence in Salinas is that if the prosecution is limited to using silence to impeach the defendant’s testimony, then the defendant himself retains control over whether his silence is ultimately introduced into evidence. He can choose, in other words, not to testify and thereby ensure that the fact of his silence will stay out of evidence at trial. In contrast, that is not the case for the use of silence to prove guilt, which the suspect is powerless to prevent.
This argument is troubling, however, because it ignores the serious burden that an impeachment threat imposes on the defendant’s right to testify in his own defense. It is, in fact, very costly to a defendant for the Court to hold that if he has failed to answer the officers’ questions, then he retains the power to exclude that silence at trial only so long as he forfeits his right to tell the jurors his story, in his own words. One could almost as easily maintain that Salinas could have avoided the introduction of his silence as affirmative evidence of guilt by pleading guilty and forfeiting his right to a trial.
A third argument for the exclusion of Salinas’s silence in the face of a police question rests on the fact that if he had said “I invoke my right to remain silent,” rather than merely failing to answer the question, then the prosecutor would almost certainly have refrained from introducing that invocation at trial as proof of the defendant’s guilt. To introduce such an invocation would feel much more like the direct imposition of a penalty for invoking one’s constitutional rights, than would introducing the fact of Salinas’s mere silence. Yet a suspect who is facing police interrogation is unlikely to have the presence of mind to say “I invoke my rights” and is far more likely, instead, to just stop talking, as Salinas did. Why should anything turn on the difference between the savvy suspect who knows enough to invoke his rights, and the less sophisticated, nervous suspect who simply stops talking?
This argument is, from a normative standpoint, difficult to answer and strikes me as persuasive. Nonetheless, the Supreme Court has explicitly chosen to treat invocations of the right to remain silent differently from the simple failure of a suspect to say anything when police ask questions. In Berghuis v. Thompkins, the Court held that, after reading a suspect in custody his Miranda warnings, police may ask questions without receiving any express waiver of the right to remain silent. Then, if the suspect ultimately answers a question, that answer presumptively evidences the suspect’s waiver of the right to remain silent. On the other hand, if the suspect says “I wish to remain silent,” then the police must stop questioning him immediately. The Court thus interprets silence in the face of the reading of the Miranda warnings as something very different from an invocation of rights. That is an interpretive choice that I strongly criticized in a column here, but that nonetheless remains the law.
Accordingly, I would expect the Court to have interpreted an actual invocation by Salinas of the right to silence as, at the very least, implicating Doyle and rendering the silence insolubly ambiguous and thus inadmissible. By contrast, the Court would likely say that Salinas’s failure to answer the officers’ question about his weapon is far more relevant to guilt and less subject to the “maybe he’s just doing what the Miranda warnings give him the right to do” interpretation.
In the end, I think that a victory for the government would represent the outcome most consistent with the Supreme Court’s existing precedents. That said, I am sympathetic with the defendant’s predicament, and would welcome a decision from the Court that took seriously the undeniable facts that (1) everyone knows about the Miranda rights, regardless of whether Miranda warnings are actually given in a particular case; (2) suspects feel inhibited about expressly invoking their right to silence, and thus may opt for passively exercising that right by saying nothing; and (3) because few suspects have the self-confidence and wherewithal to directly assert their right to remain silent, it seems an unjust formalism to rely on that insecurity to elevate the ritual of saying “I invoke my rights.”
Ideally, nothing of consequence should rightly turn on such formalism. If the Court takes these facts into account, as I hope it will, it may see fit to revisit some of its earlier, less forgiving case law on the admissibility of suspects’ silence.
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