Pssst. Invoke your right to Silence. Pass it on.

Salinas v. Texas, __ Sup. Ct. __, No. 12-246, 2013 WL 2922119, (June 17, 2013)

The Petitioner attended a party where someone was shot to death. Salinas, 2013 WL 2922119 at 3.  He voluntarily answered most of the officer’s questions, but remained silent when police asked if the shotgun shells recovered at the murder scene would match his shotgun. Id.  Later, he was charged with the murder. Id. During trial, prosecutors used his reaction to the question as evidence of his guilt. Id. at 4.

The United States Supreme Court found that Salinas did not invoke the privilege because he merely remained silent. Therefore, it was appropriate for the prosecutor to use the evidence of his silence against him because it was unclear why he did not answer the question.  It outlined the issue of invocation as follows:

A.      The privilege against self-incrimination is an exception to the general principle that the government has the right to everyone’s testimony. Garner v. United States, 424 U.S. 648, 658, n. 11 (1976)

1.       Therefore anyone who wants the protection must claim it. Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (quoting United States v. Monia 317 U.S. 424, 427 (1943).

a.       This requirement ensures the government is put on notice of a witness’ intent to rely on the privilege.  The government can then either :

                                                                                       i.      argue that the testimony is not self-incriminating (see Hoffman v. United States, 341 U.S. 479, 486, (1951)) or

                                                                                     ii.      grant immunity for the testimony (see Kastigar v. United States, 406 U.S. 441, 448 (1972)).

2.       Two exceptions to having to claim privilege:

a.       Taking the stand to assert the privilege at his own trial. Griffin v. California, 380 U.S. 609, 613–615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)

b.      Involuntary relinquishment due to government coercion. Miranda v. Arizona, 384 U.S. 436 (1966)

The Fifth Amendment guarantees that no one shall be compelled to incriminate himself.  Salinas, 2013 WL 2922119 at 7. It does not create an unqualified right to remain silent. Id. Therefore, a witness can only refuse to answer a question if the answer is incriminating and the court needs to be alerted of the reason in order to evaluate any Fifth Amendment claim. Id.

The defense argued that it would be unfair to require a defendant to do anything more than remain silent because he did not have a legal education.  Id. He thought that by remaining silent he was exercising and invoking his right to do so.  Id.  The Court disagreed even though it essentially admitted that the Miranda warnings are inadequate.  The Miranda warnings inform a defendant they have the right to remain silent, but do not inform them that if they do so without unambiguously invoking that right, their silence can be used against them.  Doesn’t this seem inadequate?  The police do not inform witnesses how to invoke their right, only that they have one.  How is a defendant, unschooled in legal particulars supposed to figure out that his right is not automatic, but that he must invoke it, and invoke it unambiguously?

Bottom Line:

They will not figure it out unless we tell them. It is part of our jobs as counselors to educate people.  It is appropriate to put warnings on your website or business cards.  First and foremost, inform the masses that if they are a suspect, not to talk to the police for any reason whatsoever without an attorney present.  Second, if they are questioned by the police as a witness and the questions become accusatory, tell the police, “I am invoking my 5th amendment right to silence.”

Together, we can spread the word.

Speak Your Mind

*