Supreme Court: You have to speak up if you want to plead the Fifth

June 19, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonThe Fifth Amendment forbids someone from being “compelled in any criminal case to be a witness against himself.”

The refusal to answer a question in a criminal law context for fear of self-incrimination is commonly referred to as “pleading the Fifth.”

Coincidentally, the Supreme Court has held repeatedly that this privilege against self-incrimination must actually be pled; that is, it must be actively invoked.

On Monday, the Supreme Court expanded that position in its Salinas v. Texas ruling.

In Salinas, the Court upheld the prosecution’s use of the defendant’s silence during trial to obtain a conviction.

The facts of the case begin on the morning of December 18, 1992, when two brothers were shot and killed in their Houston, Texas home.

There were no witnesses to the murders, but a neighbor reported hearing gunshots, and then witnessed someone run out of the house and “speed away in a dark-colored car.”

Police recovered six shotgun shell casings at the scene of the crime.  Further investigation led police to identify Genovevo Salinas, the defendant, as a suspect.  Salinas had been a guest at a party the victims hosted the night before they were killed.

When Police visited Salinas at his home, they saw a dark blue car in the driveway.  He agreed to forfeit his shotgun for ballistics testing and to further accompany police to the station for questioning.

The police interrogation of Salinas lasted for about an hour.

Salinas cooperated and answered the police questions during the bulk of the interrogation.  However, when the police asked whether Salinas’ shotgun “would match the shells recovered at the scene of the murder,” Salinas didn’t answer.  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.”

After a “few moments of silence,” the police resumed their questioning and Salinas continued to cooperate again.

After the session ended, police arrested Salinas on outstanding traffic warrants, but prosecutors soon concluded that there was insufficient evidence to charge Salinas with the murders, and he was released.

Police later obtained additional evidence – a statement from a man who claimed to hear Salinas confess to the murders – and prosecutors then decided that there was sufficient evidence, and charged Salinas with the murders.

By that time, however, Salinas had disappeared.

Police later found Salinas again living under a fake name, and arrested him.

At trial and over Salinas’ objection, prosecutors used his reaction to the officer’s question during the 1993 interview as evidence of his guilt.

The prosecutor pointed out to the jury during closing argument (drawing on testimony he had elicited earlier) that Salinas had remained silent when asked about the shotgun.   The prosecutor told the jury, among other things, that “‘[a]n innocent person’” would have said, “‘What are you talking about? I didn’t do that. I wasn’t there.’”  But Salinas, the prosecutor said, “‘didn’t respond that way.’”  Rather, “‘[h]e wouldn’t answer that question.’”

The jury returned a guilty verdict, and Salinas was sentenced to 20 years’ imprisonment.

Salinas appealed the conviction, arguing that the use of his silence during the 1993 interview violated the Fifth Amendment.  Salinas lost at every stage of appeal, and the case finally reached the Supreme Court, where he also lost.

The majority consisted of the conservative wing of the Court (Justice Alito writing, joined by Chief Justice Roberts and Justice Kennedy with Justices Thomas and Scalia concurring separately).

They found that Salinas’ “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question.”

There are two exceptions to this general rule that the majority noted, but they found that “neither applied here.”

The first exception applies at trial: a defendant need not invoke his Fifth Amendment right to decline to take the witness stand at his own trial.

The second exception applies in situations where “a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.”

For this second exception, the majority cited to Miranda v. Arizona as holding that “a suspect who is subjected to the ‘inherently compelling pressures’ of an unwarned custodial interrogation need not invoke the privilege.”

The majority concluded that Salinas “cannot benefit from that principle because it is undisputed that his interview with police was voluntary.”

True, Salinas was not technically in police custody when he was being questioned (i.e., he had not been placed under arrest nor read his Miranda rights) – a fact of which the majority spares no words reminding us.

Nevertheless, the interrogation took place in the context of a criminal investigation, in which Salinas was a prime suspect – a fact which the police informed Salinas of before his interrogation – which occurred at the police station.

Justice Breyer’s dissent mostly echoes this sentiment, and supports this position by citing a series of cases that makes “clear that an individual, when silent, need not expressly invoke the Fifth Amendment if there are ‘inherently compelling pressures’ not to do so.”

In Salinas’ case, Breyer believes that such pressures existed at the time of his 1993 interview.

According to Breyer, “[t]he relevant question – about whether the shotgun from Salinas’ home would incriminate him – amounted to a switch in subject matter” from that of the line of questioning up until that point.

Furthermore, “it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.” 

Was Salinas truly “free to leave” at any time?  Technically, yes.  But practically speaking, I doubt that anyone in Salinas’ situation would not feel “inherently compelling pressures” to stay.  And even if Salinas did leave after the fateful question was asked, it’s almost certain that the prosecution would have used that departure in much the same manner as it did Salinas’ failure to answer.

Breyer further noted that Salinas was likely well aware of the implications of the question at issue and knew that he had a constitutional right against self-incrimination, but since he was unrepresented by counsel, he didn’t use the words “Fifth Amendment” or any other technical legal language that would unequivocally signal his invocation of his right.

Thus, according to Breyer, Salinas’ silence was very likely meant as an invocation of his Fifth Amendment right even though no explicit language was used.

But Breyer’s dissent is on the losing side of this issue.  As such, police are now free to ask any number of questions seeking potentially incriminating answers, and, as long as the questioned individual isn’t technically “in custody,” your silence can be used against you.

So from now on, when in doubt, invoke the Fifth.