“I’m not a lawyer… But I’ve seen one played on TV!”

Supreme Court

By Maya Durvasula.

There are a number of inaccurate things about cop shows and forensic procedurals that should make you shake your head: the sketchy detective work; the otherworldly, gleaming forensic technology; the unusually attractive and impeccably styled attorney grand-standing before the jury.

But the phrase “you have the right to remain silent,” announced as the criminal is led off in handcuffs, isn’t typically one of those things. Recent court decisions, however, are challenging this “right” to remain silent, which our society often suggests is fundamental and well protected by the legal system.

In Salinas v. Texas, decided during the summer of 2013, the Supreme Court held that individuals who voluntarily talk to the police must affirmatively invoke their right to remain silent or lose the privilege entirely. A 5-4 decision argued that merely remaining silent when being asked damaging questions does not constitute claiming a right to silence.

The Court refused to overturn the conviction of Genovevo Salinas, who had voluntarily spoken with police officers in Houston about the 1992 murder of two brothers. Although he answered most of the officers’ questions, he “looked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up,” then sat in silence after being asked if shotgun casings at the scene would match his gun.

Prosecutors used his refusal to respond to those questions as evidence of his guilt. The Court argued that, in order for Salinas’ silence in response to questioning to be protected, he had to explicitly acknowledge that that silence was a reflection of his Fifth Amendment right.

The implications of this decision are troubling, to say the least.

George Washington University law professor Orin Kerr makes the argument that “it is relatively easy for the government to claim that a suspect’s reaction to an incriminating question suggests guilt – and very hard for a defendant to challenge that characterization.”

When it is acceptable for prosecutors to comment on silences and non-answers, the door for commenting on pauses and nervousness is opened. Justice Stephen Breyer’s dissent argued that allowing the prosecution to use silences during questioning as evidence of guilt could compel a defendant to take the stand to explain his silence or speech, forcing him to do “very much what the Fifth Amendment forbids:” act as a witness against himself.

Practically speaking, the notion that an individual questioned by the police outside of custody would be well-versed enough with the law and the changes brought about by the Salinas decision to affirmatively invoke his Fifth Amendment right verges on ridiculous.

Salinas v. Texas was considered a “sleeper” SCOTUS case of 2013, drowned out in mainstream media outlets by decisions on United States v. Windsor (DOMA), Hollingsworth v. Perry (California’s Prop 8), Shelby County v. Holder (Voting Rights Act), and Fisher v. University of Texas (affirmative action). Headlines that emphasized the importance of this change to the “right to remain silent” populated only a handful of Supreme Court blogs.

More importantly, the general population is not comprised of lawyers who understand the intricacies of pre-custodial police interviews. It is highly unlikely that an individual being questioned by a police officer outside of custody would be familiar enough with the limitations on his right to silence in that situation to formally and verbally invoke the Fifth Amendment.

Kerr also points out that, in extra-custodial proceedings, the police are not obligated to provide any warnings or talk about the law. Individuals being questioned do not have to be advised of Miranda rights, which are not applicable, nor do they have to waive their right to silence.

“That means that [police officers] can construct the conversation in the kind of way that makes it extraordinarily awkward for the person to play lawyer and assert his Fifth Amendment privilege,” Kerr wrote on his blog, The Volokh Conspiracy (now published by the Washington Post).

Brandon Garrett, a professor at the University of Virginia School of Law, argues that the Salinas ruling “encourages the kind of loosey-goosey, and easily contaminated, police questioning,” which has led to wrongful convictions in the past. In Salinas’ case, there was no eyewitness and very little other evidence that indicated his guilt. In cases like this, confessions are often required to secure a conviction. If the police officer had not been permitted to testify about Salinas’ silence and discomfort during interrogation, it would, likely, have increased the chances of an acquittal.

Earlier this year, the California Supreme Court heard the case of Richard Tom, who broadsided a car in 2007 and killed a girl, while injuring her sister. At the accident scene, he was told he was not allowed to leave and held in the back of a police car, during which time he never inquired about the victims. While on trial for vehicular manslaughter, the prosecutor used this as an indicator of his “consciousness of his own guilt.” The California Supreme Court ruled that his silence at the scene of the accident – his failure to ask about the victims – could be used against him in court.

Much like the Salinas ruling, the California Supreme Court is suggesting that, for individuals who have not yet been taken into custody, the only way to remain silent without providing incriminating evidence is (inconsistently) to speak up first.

Maybe we have cop shows to blame. The ubiquitous nature of the phrase “you have the right to remain silent” in our society and pop culture erroneously suggests that the right is relatively far-reaching, devoid of loopholes and tricky formalities.

The larger problem, however, seems to be with the recent trend toward trampling on citizens’ right to silence. The U.S. Supreme Court and the California Supreme Court are placing defendants who are subjected to pre-custodial questioning in an impossible place, by requiring a formal invocation of Fifth Amendment rights.

Yet this technicality is so buried that very few suspects would recognize and act based on the new reality. It is now impossible to remain entirely silent.

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