You No Longer Have the Right To Remain Silent

I’ve seen a number of distressing decisions come out of the Supreme Court, but this may be the most gut-wrenching I’ve seen in a long time. Here’s how criminal defense lawyer Bobby G. Frederick sums it up:

In Salinas v. Texas, decided today, the U.S. Supreme Court held that a suspect’s silence may be used against him in court – the officer can offer testimony about it and the prosecutor can argue it to the jurors, unless the suspect expressly invoked his privilege against self incrimination.  The Court’s reasoning is, essentially, that there is no “right to remain silent.”  There is a right not to incriminate oneself, and the suspect must expressly invoke that right.  Silence in the face of questioning is not sufficient.

Frederick quotes the court’s reasoning:

To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to make a timely assertion of the privilege.”

Well, yes, we all know that as a practical matter people often don’t answer questions because they are guilty of something, but I thought the courts were supposed to presume we are innocent until proven guilty. And you know another reason we might decline to answer a police officer’s question? Because, as defense lawyer Gideon explains, we might have just realized the officer is up to something:

Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

You thought you were having a relatively friendly conversation with a police officer who at first appears to be looking for witnesses to a crime, then suddenly you realize you may be the suspect. Any lawyer would tell you this is a good time to shut up. (Matt Haiduk’s rule #3: Things get weird.) And up until this ruling, that would protect you: Your silence could not be used against you in court.

Actually, as Scott Greenfield pointed out, shutting up is what us geek types call a necessary but not sufficient condition. It keeps you from saying anything to the cops that could be used against you in court, but it doesn’t stop them from asking, and asking, and asking.  As Katya Kumisaruk has been saying for years, you have to make it explicit:

The surest way to invoke your rights is to say the Magic Words: I’m going to remain silent. I would like to see a lawyer. These two sentences completely invoke your Miranda rights. The reason for memorizing this particular formula is that it’s easy to make mistakes.

For example, some people say, “I take the Fifth.” That’s good, but it doesn’t remind you of what you’re supposed to be doing: remaining silent and waiting for your lawyer. If you say, “I take the Fifth” and then keep on talking, you cancel the effect. Not only will the police be able to go on speaking to you, but everything you say to them will be used against you in court.

Another error is being too hesitant, as in “I think maybe I’d like to remain silent,” or “Do you think I should talk to a lawyer?” Usually, people do this because they’re nervous and they don’t want to seem impolite. But the police immediately take advantage of this sort of shyness to talk the suspect into answering questions.

And as Scott says, you’ve got to stand your ground:

But it’s not over yet. Oh no. Even if you have effectively invoked your right to remain silent, you can blow it when, feeling confident and bold in having outsmarted the police by speaking the magic words, you then choose to vomit words in the absence of provoking questions.  In other words, if after the invocation of your right to remain silent, you voluntarily make statements without having been provoked into doing so by the police, you have in essence un-invoked your rights and your statements can be used against you.

One last tip is that it is wise to repeat the invocation of your constitutional rights each time a new officer comes to say “hi,” so that everyone is aware of your invocation and no one can later claim that you offered up the statements freely. Yes, the police may think you’re a repetitive bore, but they weren’t going to invite you to a party anyway, so no loss.

(Really, read Scott Greenfield’s post. He’s a smart guy, and it’s good advice. If you feel like reading some more, Kumisaruk’s Just Cause Law Collective website is a pretty good guide to street law and handling police encounters, although apparently not updated much. The Flex Your Rights folks have some good stuff too, including two great videos.)

The Salinas decision appears to have changed the way things work, in that not only is remaining silent not an invocation of your Fifth Amendment rights, but now your silence can be brought up in court as evidence against you if you do not explicitly invoke your rights.

Here in Chicago, the First Defense Legal Aid organization staffs a hotline for people questioned by the Chicago Police (1-800-LAW-REP4, about which I’ve written before) and runs a series of “street law” training sessions for Chicago residents, mostly juveniles in poor minority neighborhoods. I asked Executive Director Eliza Soloweij about the Salinas decision, and she’s not happy:

It’s a blow to the fairness, equality and accountability of the justice systems, and to the goals of eliminating false confessions and disproportionate minority confinement. Now people have to know “the magic words”…in order to access their constitutional right. We have a lot of work to do in this climate, organizing ‘from the suites.. to the streets..’ for the knowledge, awareness, and hope necessary for poverty stricken communities to access their rights.

Constitutional rights, Miranda rights, can seem like a joke or something only on TV. Our Englewood and North Lawndale “know your rights” campaigns are as urgent as ever.

And because of Salinas, the FDLA’s training programs are going to have to change:

We have updated our curricula and are briefing our street law volunteers, blasted the new info out on Facebook and through street outreach, etc. It will take a strong, sustained, full court press — by the community-based peer educators and the legal community together — to realize the rights guaranteed in the 4th 5th and 6th amendments real in poverty stricken communities. We are not there yet and the consequences are huge.

As far as I can tell from my limited non-lawyer reading of the blogosphere, your refusal to answer questions can now be brought up in court unless maybe it’s in the context of explicitly invoking your Fifth Amendment rights. And even then, the situation is confusing:

…the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.

But what sort of behavior indicates guilt? This seems to be a very murky question, with even murkier answers.

Offered for your consideration, a few scenarios where, as in Salinas, a critical question goes unanswered:

• You’re standing on the sidewalk and an officer engages you in conversation. At some point, he asks you a critical question that makes you uncomfortable, so you stop answering his questions.
• You’re standing on the sidewalk and an officer engages you in conversation. At some point, he asks you a critical question that makes you uncomfortable, so you say “I’m going to remain silent. I’d like to speak to a lawyer.”
• You’re standing on the sidewalk and an officer tries to engage you in conversation, but you refuse to answer any of his questions.
• You’re standing on the sidewalk and an officer tries to engage you in conversation, including his critical question. You respond, but he feels your answers are evasive.
• You’re in a crowd of people on the sidewalk when an officer comes up and asks all of you the critical question. Everyone responds except you.
• You’re in your home watching television and an officer comes to your door and announces he wants to ask you some questions. You ignore him completely, never even answering the door.
• You’re walking down the street and the officer is walking down another street. You two never meet, and you never answer any questions.

In every single one of these scenarios, your answer to the officer’s question is exactly the same: You give none. Yet the first scenario is the Salinas case, and apparently the Supreme Court says the officer can now testify to your refusal to answer questions, and the prosecutor can make pointed references to your refusal during his argument to the jury.

The second scenario is supposedly what Salinas should have done, because it makes it clear that you were refusing to answer because you were invoking your rights. But since the burden of proving the reason for your silence is apparently on you, can the prosecutor offer rebuttal? Can he argue that invoking your rights was a lie to cover up your real reason for not answering questions? Can he bring in witnesses to support that contention? Might you have to take the stand (and suffer cross-examination) in order to explain the reason for your silence? I don’t think we know the answers yet.

As for the rest of these scenarios, I assume that in the last one your silence cannot be used against you, but I don’t think the Supreme Court has left us clear guidance. It could get pretty bad, especially as this is “clarified” in future rulings.

How bad could it get? Well, just read this bit by law-and-order hardliner Kent Scheidegger, who thinks Salinas doesn’t go nearly far enough in eviscerating our right to silence:

Justice Thomas, joined by Justice Scalia, concurs in the judgment on the broader ground that commenting on silence is not compulsion within the meaning of the Fifth Amendment, and Griffin v. California, 380 U.S. 609 (1965), forbidding comment on the defendant’s failure to testify at trial, was wrongly decided.  There is zero chance of overruling Griffin with the current Court, but there is much to be said for not extending it.

Justice Breyer dissents, joined by Justices Ginsburg, Sotomayor, and Kagan.  He goes through Fifth Amendment precedents in analytical fashion and decides they should apply to exclude this evidence.  I was particularly struck by his next-to-last paragraph:

Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today’s case is clearly: yes.

What’s wrong with this picture?  The needs he considers are entirely on one side.  There is a reason that the goddess of justice is portrayed holding a double pan balance scale.  What about the need to punish Salinas for a double shotgun murder?  What about the need to get a violent thug off the street?  Don’t those needs count at all?

Oh my fucking God! “What about the need to punish…?” Has he forgotten about the entire criminal just system — billions of dollars spent on police, prosecutors, and prisons — that has put a larger percentage of our population in prison than any other nation in the world? And this badgelicker thinks the right to silence is too unfair to law enforcement?

Look, forget about the Constitution and the Fifth Amendment for a moment, and consider the basic ethics of a few more scenarios:

• You’re walking down the street and a random fucking stranger tries to engage you in conversation. Out of politeness, you reply to his first few questions, but they become increasingly personal and rude until he asks you something that makes you think he’s out to hurt you, so you stop talking to him and walk away.
• The police officer who arrests you for, say, Unlawful Promotion of Unlawfulness with Intent to Act Unlawfully (with apologies to squawk) gives a press conference announcing his accomplishment, but the reporters veer off script and start asking him if he beat you, if he tased you while you were handcuffed, and if he then stole $300 from your wallet, at which point he refuses to answer their questions and ends the press conference.
• A midwestern blogger calling himself Windypundit asks Kent Scheidegger a series of questions, starting with “Have you ever actually tried a case in a criminal courtroom?” and passing through “How often do you beat your wife?” on the way to “Is it true you have a tattoo of Adolf Hitler on your left testicle?” and at some point Scheidegger gets angry and refuses to answer any more questions.

Aside from the fact that some of the questions to Scheidegger are not about crimes, how are any of these scenarios different from when a police officer switches from casual conversation to uncomfortably accusing questions? And if our refusal to answer impertinent questions from random fucking strangers — police officers or not — can be used against us in court, what the hell kind of world are we living in?

So when the cops comes around to ask you a few questions, what’s the right way to refuse to answer questions? Scott Greenfield suggests blaming your lawyer:

Officer, my lawyer has advised me that I am never to answer questions by the police, and since I am not a lawyer, I am constrained to follow my lawyer’s advice and refuse to answer questions.

It’s not as simple as the magic words (“I’m going to remain silent. I would like to see a lawyer.”) but I like that answer a lot. I’ve never been questioned by the police about anything serious, and I’m not sure how well I’d stand up to interrogation, but given all my acquaintances in the legal blogosphere, I’d like to think my response would be something like,

You know officer, I’ve got about six or seven friends who are criminal defense lawyers, and I don’t think any of them would ever speak to me again if I answered a question like that. So, based on their advice, I’m going to have to remain silent from here on out, and I’d like to see a lawyer. Or am I just free to go now?

At least I hope I would be that smart. And not have to take a beatdown for asserting my rights.