Salinas v Texas: "What you don't say may be used against you" or "Why do we even have Miranda laws?"

Great Debates
1

Some background can be found here, from the CATO Institute, or here, from The Atlantic:

[QUOTE=The Atlantic]
…in a 5-4 ruling on Salinas v. Texas… if you remain silent before police read your Miranda rights, that silence can and will be held against you.
[/QUOTE]

With Justice Alito, writing in the decision, that:

What I’ve gathered about the case:
Salinas was questioned by the police before being taken into custody, and thus, not read his Miranda Rights (i.e. the famous “right to remain silent”). In his conversation with the police- he wasn’t being “interrogated” because he wasn’t in police custody at the time- he answered some questions but evaded others by remaining silent until the police moved on to a new topic. Later, at trial, prosecutors used officers’ characterizations of Salinas’ silence to imply his guilt in court. When the defense objected on up to SCOTUS, the majority opinion held that the Fifth Amendment was not applicable because of the Alito quote above.

Reading various legal blogs, it seems to me that the two relevant Fifth Amendment cases here are:
[ul]
[li]Griffin v California: Which holds that prosecutors can’t use the fact of the accused’s silence as evidence of his his guilt[/li][li]Miranda v Arizona: Which holds that that, due to the coercive nature of police authority, people questioned in custody must be informed of their “right to remain silent”[/ul][/li]
For debate:
First, how does this not completely undermine the spirit of Miranda? If police questioning is understood to be coercive, why does it matter whether or not you’re in custody? If it’s assumed that people taken into custody must be told their Fifth Amendment rights- presumably because they can’t be expected to know of them- why is it reasonable to expect a person to know of those rights before they’re taken into custody? Are we a nation of constitutional lawyers who inexplicably forget ourselves when we’re arrested?

Second, SCOTUS simply dodged Griffin outright by avoiding the topic of the Fifth Amendment altogether. But, had they allowed that Salinas did actually have a right to remain silent while talking to the police but not in custody- something I’d guess most would assume- would Griffin have defended him? Or would it only protect silences that occured in court?

Third, since it’s a federal crime to make a false statement or conceal information when talking to law enforcement and you can’t just clam up and whatever you say can be used against you… Is there anything at all you can/should say to the police other than, “I invoke my Fifth Amendment right to not talk to you?” And if that’s the case, I can think of a PSA campaign that really needs to get underway…

2

Police questioning in custody is coercive. Police questioning of a person NOT in custody isn’t coercive, since the person being questioned is free at any time to leave and go about his business.

“I’m sorry, but although I haven’t done anything to be ashamed of, I’m not talking to you without a lawyer present.”

3

Whatever the letter of the law may be, it’s not at all hard to understand that a cop (or many cops) can effectively lean on most people without taking them into custody simply by virtue of a socially conditioned deference for the police.

Well darn. You failed to explicitly invoke the Fifth Amendment. Now the officer can testify in court about how your eye was twitching in a way that made you seem guilty!

4

I’ve done plenty to be ashamed of, but none of it is against the law. :dubious:

5

The test for whether a suspect is in custody is whether, in the circumstances, a reasonable person would have felt free to leave. That seems to vitiate your “socially conditioned deference” theory somewhat – if a reasonable person would have felt constrained from leaving, then he is in custody and must be given the Miranda warnings.

No, he can’t. And I did invoke the Fifth Amendment: …I’m not talking to you…

6

If I’m understanding right, the rule the Court has established is that you have to explicitly invoke your right to remain silent, not that you have to use the words “Fifth Amendment”.

“I’m choosing not to answer”, “I won’t talk without my lawyer”, etc., would all be explicit invocations of a right to silence.

That said, I do think it would be preferable if the rule were that a court must judge from your actions whether you intended to invoke your right to silence. (If I understand right, four Justices held this view.) It seems a bit unfair that someone who is genuinely trying to invoke his right to silence should be penalized for not knowing the right way to do so.

7

Because Miranda, a court created machination and not a constitutionally mandated scheme, was espoused to offer some protection to those subjected to custodial interrogations. As J. Alito so keenly observed, the defendant was not subjected to any custodial interrogation here and therefore, Miranda cannot be said to apply, and certainly neither can its non-existent “spirit”. This decision does not weaken or undermine Miranda as Miranda is still applicable, as it has been for a very long time, to custodial interrogations.

The rationale for Miranda, as you noted in your post, to some extent was to insulate the subject from the duress, pressure, and coercive nature of custodial interrogations and abate if not hopefully preclude coerced and pressured statements and confessions. Non-custodial interrogations, according to the Court, lack the coerciveness, the duress, and pressures of custodial interrogations and consequently Miranda does not apply to non-custodial interrogations since the proverbial “evils” Miranda was espoused to address are not existent in non-custodial interrogations.

The majority decision, which itself splintered 3-2, addressed Griffin. It is perhaps important to understand the law in this area. Griffin v. California, 380 U. S. 609 (1965) the Court held the government could not comment upon a defendant’s refusal to testify at trial, or simply remain silent during trial, as evidence of the defendant’s guilt. Here, the government was commenting upon the defendant’s silence during a non-custodial interrogation as opposed to commenting upon the defendant’s silence at trial or refusal to testify at trial.

8

So two cops catch me on the street and position themselves in such a way that they’d have to physically step aside for me to leave. They don’t say I can’t leave, but neither do they make it physically or socially “convenient” for me to do so. They ask me questions and I inadvertently incriminate myself somehow. Was I “in custody”, implying a violation of Miranda rights? How would I even begin to prove that? I’m guessing all the court would need to deflate such a claim would be the (completely true) testimony that the cops didn’t explicitly tell me I couldn’t leave.

…you were awfully quick to deny having “done anything to be ashamed of.” I was just asking you who you were and what you were doing here. If I didn’t know any better, I’d say you had something to hide. I wonder what the jury will think. :wink:
But in all seriousness, since I have you here and, knowing that you’re up on matters legal (I was hoping you or Kimmy Gibbler would appear), there’s one aspect of this that I’d really like to hear you comment upon:
Miranda seems to imply that it is unreasonable to expect that people taken into custody understand their Fifth Amendment rights. Why is it reasonable, then, to expect that people who haven’t been taken into custody understand their Fifth Amendment rights? That’s the whole crux of it for me.

9

So I’m curious, you lawyer-types.

If there’s not specific wording that must be used, would “up yours, copper” or something similar suffice?

10

Thank you for the response. While I agree with much of what you said, I must direct you to the same question I just asked Bricker:
Does the reading of Miranda rights imply that those taken into custody aren’t expected to understand their Fifth Amendment protections before they’re told? And, if it does, how can Alito or anyone else reasonably expect everyone to know about the Fifth Amendment so as to explicitly reference it before they’re taken into custody?

11

No…I can also live with the notion of not necessarily.

12

This question comes up a lot, as you might imagine. Obviously, from the defense point of view, the best thing for a suspect to do is immediately say, “I haven’t done anything wrong, and I don’t wish to talk to you. Am I free to go?”

That forces the hand of the Commonwealth right away. The police need to be able to show reasonable, articulable suspicion from information they knew at that moment, or their seizure of you is improper.

Now, your instinct is correct. Police are well-trained to keep things just this side of the line – to create an impression that you need to stay but leave them enough room to piously proclaim at the hearing that it was a consensual encounter.

In determining whether you in in custody the courts will look to the totality of circumstances. The ultimate issue is whether you are seized and your freedom of movement is restrained in ways similar to a formal arrest. The factors to be considered are:

[ol]
[li]The manner in which the suspect is approached by the police[/li][li]The familiarity or neutrality of the surroundings[/li][li]The number of officers present[/li][li]The degree of physical restraint[/li][li]The duration and character of the interrogation[/li][li]The extent to which the officers’ beliefs concerning the potential culpability of the suspect being questioned were manifested to the suspect[/li][/ol]

Harris v. Commonwealth, 500 SE 2d 257, (Va. App. 1998)

No single factor is deciding.

They’ll never hear it.

It’s not exactly about whether they understand their rights. It’s whether the questioning is inherently coercive. A person who isn’t in custody isn’t going to have their will overborn by coercive interrogation.

13

Well, it’s not an invocation of the right to remain silent. :slight_smile:

But at the same time, it’s not inculpatory in the same way silence after a particular question was.

I don’t recommend it.

14

How about “Nix on dat-I ain’t no dirty rat, copper!”?

15

I don’t really have a question, but this decision seems so weird to me that I assume I don’t actually understand it.

I kind of understand having to explicitly invoke the 5th during court procedures but in all other cases I can think of rights (from the POV of the state) just exist. But here it seems like one can say ‘I’m not speaking to you’ and not have one’s silence used in court; but actually staying silent can. Surely the law isn’t a game of ‘Simon Says’.

Are there any other rights that have to be explicitly invoked? It’s not like the government could put a checkpoint in front of all the churches and refuse entrance to anyone not explicitly invoking the 1st? If the police ask to search my car they can’t take my silence as a ‘yes’ can they?

16

That’s an excellent question. Like you, I imagine, I had just kind of assumed that my rights existed all the time whether I invoked them like some sort of legal incantation or not. I figured I could refuse to incriminate myself in whatever way seemed best to me and that people only have to explicitly invoke the fifth in court for practical reasons.

17

How exquisitely vague!

18

In general, courts do not assume they have the power of mind-reading; certain functions and features of the court are there to be used at your option. But the justice system does not usually have the duty of spelling out, in exquisite detail, all options you may have or could use in your defense, particularly before you are actuaklly charged with a crime. Miranda exists in order to ensure that you have at least been made aware of the basics prior to serious quesitoning. But the police do not have to wave flags telling you when and how to behave in order to avoid scrutiny.

Likewise, you seem to have difficulty with the fact that you have different rights at different stages of the legal process. You do not have the right for police to not draw inferences or suspicions based on your behavior - that’s essentially their job.

19

I wonder when the case will come along that requires cops to notify people of THAT right.

20

Didn’t the prosecutor in this case encourage ‘mind-reading’ by asking the jury to consider why the defendant didn’t answer certain questions? Something he wouldn’t be allowed to do (if I understand the decision correctly) if the defendant had explicitly invoked a right to remain silent.

It seems like poor public policy to require laypeople to know they have to take a positive action to maintain the right against self-incrimination; especially at a point in the process when there’s no way they could realistically have consulted an attorney. Not that being poor policy makes something unconstitutional but I really hope I’m misunderstanding something since the whole thing just feels wrong.