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‘Didn’t talk... must be guilty’

Posted: June 21, 2013 8:20 a.m.
Updated: June 24, 2013 5:00 a.m.

This week’s headline is based on the premise that someday, perhaps someday really soon, a prosecutor -- or a solicitor, as we call them here in South Carolina -- might say something like it in a courtroom.

Last week, as a Washington Post headline read, the Supreme Court ruled prosecutors can use a suspect’s silence as evidence of guilt.

Now, let’s get one thing clear right away: the ruling is not about “taking the Fifth,” as in invoking our Fifth Amendment right not to incriminate ourselves in court. That’s still intact.

Notice that distinction -- in court. Last Monday’s ruling, however, does dilute our overall Fifth Amendment rights. How? By requiring that we speak up in order to stay silent.

Huh?

Justice Samuel Alito wrote the opinion for the majority: “The Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified right to remain silent.”

The pertinent case is Salinas v. Texas, where a man was charged and convicted for shooting and killing two Texas brothers in 1992. During informal questioning, before he was arrested, detectives asked Genovevo Salinas several questions. Since he wasn’t under arrest, they didn’t advise him of his right to remain silent or his right to have a lawyer present.

According to the Christian Science Monitor, Salinas answered all the questions detectives asked, with one exception. In fact, he refused to answer it.

“The prosecutor,” the Monitor wrote, “told the jury in his closing that Salinas’ silence was evidence of the defendant’s guilt.”

The question, by the way: would shells found at the murder scene match those from a shotgun owned by Salinas?

Alito wrote that Salinas’ Fifth Amendment claim -- that the prosecutor shouldn’t have used his silence against him -- “fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s questions.”

Basically, the five Justices voting in favor of this ruling were saying that you can’t take advantage of your right to remain silent just by remaining silent.

Justice Stephen Breyer, on the other hand, writing on behalf of himself and Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg, said, “The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming a witness against himself.... I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was of a criminal investigation.... And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.”

I’ll say that Salinas is probably guilty. He reportedly confessed to a friend that he committed the murders and fled the area before he could be arrested. Salinas wasn’t found again until 2007, 15 years after the murders.

However, I’m inclined to agree with Justice Breyer and his fellow dissenters on this one -- especially after I read, in Breyer’s dissent, that the prosecutor told the jury, “an innocent person would have said, ‘What are you talking about? I didn’t do that. I wasn’t there.’”

That does seem a bit much, doesn’t it? My opinion is that any defense attorney worth his or her salt would immediately object -- and that most judges would probably sustain the objection.

As Breyer points out, there’s certainly precedent. He cited a number of cases where lawyers were found to have violated a defendant’s Fifth Amendment rights by commenting on any particular point of silence, not just that they declined to testify or answer a particular question during a trial.

Way back in 1970 -- and I’m quoting from Breyer’s dissent here; the italics is his -- in Turner v. United States, the Court ruled “the prosecution may not ... use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

What Breyer is saying is that the Court had already ruled that you can just stay silent while being questioned. Another case, Kastigar v. United States, said pretty much the same thing, that “the privilege ... usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer.” And that was a case involving a police interrogation.

I have no problem with officers, investigators or detectives using someone’s silence as an indication that they need to dig further. They may, or may not, find evidence linking the suspect to the crime some other way rather than from the suspect’s own mouth.

I do have a problem, however, using that silence against a suspect in court no matter when they had been silent.

I think it’s interesting that both Alito and Breyer quoted the following Supreme Court ruling from more than 50 years ago in Quinn v. United States, but then went about different interpretations: “no ritualistic formula is necessary in order to invoke the privilege.”

Alito put an “although” in front of the quote and then added that a “witness does not do so by standing mute.”

But that’s exactly what Quinn v. United States concluded: that a witness can simply be quiet.

In a week that saw some pretty good rulings out of the Court, this was not one of them. Once again, a majority of Justices are claiming we don’t have the rights we actually possess. Score another one for injustice.

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