Last summer a Supreme Court case shook up sectors of the legal-geek world, and rightly so, but made little splash in major media outlets. You need to know about this.
In my sermon on 1 Samuel 27, I wrote about “the right to remain silent” (scroll down to Application 3, “Thinking like a lawyer”). Let me remind you of a couple paragraphs:
A good booklet on the subject is startlingly titled, Don’t Talk to the Police, by Brent Winters. There are good videos [here and here] on YouTube about the same subject. Winters notes, “The childish refrain, ‘If you have nothing to hide, you will never be afraid to speak,’ is bad advice for two reasons: first, because God sometimes desires silence nonetheless . . . second, prosecutors are skilled at twisting innocent and even exonerating words against the one having spoken them.” He lists and explains eight substantial reasons why you should never talk to the police or other government agents:
- Talking with police cannot help you, but can only be used against you.
- Prosecutors know #1 intimately and will never use anything you say to a police officer or other agent to your benefit—only against you.
- Nothing you say will ever persuade a policeman or other agent of your innocence (It is not their job!).
- Even if you are innocent, if you accidentally misspeak, it could be used to convict you or possibly bring other charges, such as making a false statement to an officer.
- Even the truth, the whole truth, and nothing but the truth, can possibly give prosecutors something to use against you.
- Prosecutors, police, or other agents may forget, misstate, or lie about what you said in order to get a conviction.
- Even the truth, when coupled with other weak or circumstantial evidence, can be used to bring conviction.
- Talking only makes you a target, or a further target, of investigation.
There are probably other reasons, to be sure, but you get the picture. These reasons and more are why Scripture so constantly and adamantly insists we control our tongue. It is not merely so we do not hurt someone’s feelings. It is about much more: “Whoever guards his mouth preserves his life; he who opens wide his lips comes to ruin” (Prov. 13:3).
This certainly includes all of life, including not just legal but other social and political aspects as well. As I have discussed before, Thomas Jefferson once complained that the centralizers of power in his day had bamboozled the State governments out of many powers because the States simply had not learned “the slipperiness of the eels of the law.” We need to learn from this wisdom. The language, meaning, application, and process of law can be very slippery, and there are many people who specialize in finding the slipperiest spot and then giving you a good push. Well did our own former Supreme Court Justice Robert Jackson state, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”
The relevant case for today is Salinas v. Texas. Some have criticized the decision as a “move to cut off the right to remain silent.” I think this is a bit much, but the decision is vitally important nonetheless.
First, just a couple notes on the nature of the case. Salinas was being investigated as a suspect in a murder case. After being contacted by the police, he volunteered to go down to the station and answer questions. Near the end of an hour-long interview, police asked Salinas if shotgun shells recovered from the scene would match a shotgun Salinas owned and had produced for the police. At this point, police testified, Salinas “did not answer,” but “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up” (see p. 4 in the link).
The original trial ended in a hung jury. This allowed the prosecution to try again. In the second trial, the testimony of Salinas’ non-answer was introduced, and the prosecutors argued that the refusal to answer and subsequent nervous behavior demonstrated consciousness of guilt. Salinas’s defense objected to the introduction of this evidence on Fifth Amendment grounds, but was overruled. This time, the prosecutors won, and Salinas is given 20 years plus a $5,000 fine.
It turns out, that remaining silent in this case turned out to be the final piece of circumstantial evidence the jury needed to convict.
Salinas appealed to the Supreme Court on Fifth Amendment grounds, but the Supreme Court agreed with the trial judge: Salinas’ silence was not protected.
What?!? Why not?
Honestly, I agree with SCOTUS in this case, at least constitutionally, and that is why the trial is so important. It is a wake-up call, once again, to everyone who thinks that “cooperating,” being Mr. Nice-guy, and talking to the police will help you. This is a not a decision that overturns much of previous precedent; rather, it affirms precedent.
Keep in mind: it wasn’t until 1966 that the Supreme Court even determined that we had Miranda rights. And most people don’t know what these rights really are. They only apply when you are in custody. If you voluntarily go down to the station and voluntarily blab for an hour, you have also voluntarily trampled all over your own right to silence.
Apart from interrogation while in custody, Fifth Amendment rights have historically been said to apply only when 1) you clearly assert that right verbally, and 2) you have a reasonable belief that answering the question will implicate you in a crime (whether you are guilty or not). This leads to all kinds of questions.
The blog The Volokh Conspiracy has a wonderful analysis of the case. I recommend reading it, as well as this ABA brief. Volokh draws several important points from the decision. First, it will make it easier for police to argue, at trial, that a suspect’s silence indicates guilt, and it will be relatively impossible for a defendant to remove the tarnish such a cheap suggestion can have. A Slate author agrees on this point, and despite him being a Slate author, I agree too:
The court’s ruling in Salinas is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. I have spent years studying cases of people exonerated by DNA testing. A large group of those innocent people falsely confessed—and many supposedly admitted their guilt even before any formal interrogation. Take the case of Nicholas Yarris, who was exonerated by DNA testing in 2003, after 20 years in prison. He had been convicted and sentenced to death in Pennsylvania for the murder of a woman found raped, beaten, and stabbed near her abandoned Chrysler Cordoba.
When informally questioned, police said, Yarris volunteered that he knew the victim had been raped, and that the victim’s Chrysler had a brown “landau” roof (a vinyl fake convertible look). That was a striking detail, especially since the police had kept it out of the press. No tape was made of the interrogation. The police didn’t even produce notes. And now that DNA has cleared Yarris, we know his confession was false, and that he must not have volunteered the fact about the car roof at all.
The Supreme Court’s decision in Salinas encourages the kind of loosey-goosey, and easily contaminated, police questioning that led to Yarris’ wrongful conviction. Salinas may very well have been guilty of the two murders. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. And that makes it crucial for them to handle interrogations and confessions with the utmost care.
Volovkh goes even further:
Second, as a practical matter, it seems unlikely that a person questioned by a police officer outside of custody is going to formally assert his Fifth Amendment right. Most people are not lawyers, and they don’t think in terms of legal formalities. And outside of custody, the police don’t have to give warnings or talk about the law. They don’t have to mention the right to remain silent and ask a suspect to waive it, knowing that the suspect can later change his mind. They don’t need to bring it up at all. And that means that they can construct the conversation in the kind of way that makes it extraordinarily awkward for a person to play lawyer and assert his Fifth Amendment privilege. Of course, a really smart suspect will just say that they’re busy so they don’t have time to talk to the police at all. (“I just can’t schedule you in anytime soon. How is 2017 for you?”) But the suspect who mistakenly thinks he can talk his way out of trouble may be in for a surprise.
This last point essentially echoes Justice Jackson’s advice quoted above: “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” But, we are now talking about times in which you do not have a lawyer, don’t suspect you need one, and don’t know any better. Police can and will take advantage of that fact. Well, now you do know better.
But Salinas v. Texas now means that even if you do remain silent, police can and may use that fact, too. This fact has not been lost on the case’s critics, or the SCOTUS dissenters, who, unfortunately, were only the liberals:
The court’s new ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberal-moderates). “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” But if he doesn’t answer, at trial, police and prosecutors can now take advantage of his silence, or perhaps even of just pausing or fidgeting.
So, do you have the right to remain silent? Yes, no, maybe. Of course you do, but 1) the only rights to actually have are the ones you know, and 2) you will have to assert that right overtly, clearly, and up front, always, as a matter of policy. How clearly? According to Volokh, SCOTUS has never made that clear.