PSST. Invoke Your Right to Silence Pass it On. Part II

Does Salinas v. Texas, __ Sup. Ct. __, No. 12-246, 2013 WL 2922119, (June 17, 2013) overrule State v. Easter, 922 P.2d 1285 (1996)and its progeny?

Article 1 § 9 of the Washington Constitution has traditionally been interpreted as equivalent to the Fifth Amendment of the Constitution. 

But…

When comparing the United States Supreme Court’s analysis of pre-arrest silence to the Washington Supreme Court’s analysis, two different pictures emerge.

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

State v. Easter, 922 P.2d 1285 (1996)

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. Salinas, 2013 WL 2922119 at 7

“the right to silence exists prior to the time the government must advise the person of such right…” Easter, 922 P.2d at 1290.

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.

“when the State may later comment an accused did not speak up prior to an arrest, the accused effectively has lost the right to silence”  Easter, 922 P.2d at 1290.

DEF’s failure to answer questions might be because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else and not because they are invoking their 5th amendment right.

If a prosecutor or officer were allowed to comment on a defendant’s pre-arrest silence it would encourage delay in reading the Miranda warnings in order to use it as evidence of guilt. Id. at 1290 citing State v. Davis, 686 P.2d 1143 (Wash. App. 1984).

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).

The right against self incrimination is “intended to prohibit the inquisitorial method of investigation in which the accused is forced to disclose the contents of his mind, or speak his guilt.” Easter, 922 P.2d at 1289 citing  Doe v. United States, 487 U.S. 201, 210–12, (1988).

Analysis under Article 1, Section 9 of the Washington Constitution cannot be reconciled with the Fifth Amendment of the United States on this issue. The U.S. Supreme Court seems to think the government is entitled to interrogate its citizens unless they ask for mercy.  The Washington Supreme Court thinks differently.  It thinks the government needs permission to force disclosure.

Bottom Line:  Although Easter was decided in absence of federal authority on point, the WA Supreme Court concluded that both constitutions prevent pre-arrest silence from being used as substantive evidence of guilt at trial.  Just because the U.S. Supreme Court’s interpretation of the federal constitution differs, does not mean WA must conform.  In fact, it should mean the opposite.  Instead of lowering our standard to accommodate the federal authority, WA should simply recognize that the standards are now different, with WA providing more protection.

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