Breaking News

Argument preview: A penalty for silence?

At 11 a.m. Wednesday, the Supreme Court will hold one hour of oral argument on the constitutional meaning of an individual’s choice to remain silent when, before he is actually arrested, police ask a damaging question about a crime.  Arguing for the convicted man in Salinas v. Texas (docket 12-246) will be Jeffrey L. Fisher, a Stanford law professor, with thirty minutes of time.  Representing the state will be Alan Keith Curry of Houston, an assistant district attorney for Harris County, with twenty minutes of time, supported by Ginger D. Anders, an Assistant to the U.S. Solicitor General, for the federal government as an amicus, with ten minutes of time.


The Constitution’s Fifth Amendment has long been understood — by courts and by the public in general — to mean that prosecutors are not supposed to try to penalize an individual’s silence by using it against him in a criminal case.  This is made vivid by the constitutional mandate that police must warn a suspect about the right to remain silent, one of the Miranda rights, before they may ask any questiuons.  That is as familiar on television police dramas as in police stations across the country.  But silence in response to a police question is not always shielded by the Fifth Amendment’s ban on self-incrimination.

The Supreme Court now turns, in a Texas murder case, to an issue about silence that has remained unsettled for a third of a century, and that has, in the meantime, deeply split federal and state courts.  It is whether an individual, even before being arrested by police, has a right to remain silent — and suffer no legal consequences — during an interview with officers at an early stage of a crime investigation.   A Houston man, Genovevo Salinas, is now serving a twenty-year sentence for murder after a conviction based partly on prosecutors’ use of his pre-arrest silence as evidence of his guilt.

The duty of police to give a Miranda rights warning exists only when the individual is formally in custody — that is, remains under police control and is not free to get up and leave.  That usually means that the individual has been arrested, and taken to a police station for questioning.  That has been the rule since Miranda v. Arizona was decided in 1966.  But, a year before that decision, the Supreme Court had issued another decision that also reinforced the Fifth Amendment right to remain silent.

In Griffin v. California, the Justices ruled that the Fifth Amendment bars prosecutors from commenting to a jury during trial that the accused individual has refused to take the stand and testify.  Then, in 1976, in the decision in Doyle v. Ohio, the Court went further, deciding that the prosecution may not comment on a suspect’s silence when he was under arrest and had been given Miranda warning.  That, in turn, set the stage for a further inquiry, answered by the Court in the 1980 decision in Jenkins v. Anderson.

That decision, however, interrupted the pattern of extending Fifth Amendment protection for silence.   Dennis Seay Jenkins had been put on trial in a Michigan court for a stabbing murder, and he decided to take the stand to make a claim that the killing had been done in self-defense.  During cross-examination by a prosecutor, Jenkins admitted that, while he had turned himself into police, he had not done so until two weeks after the crime.  Then, in a closing argument to the jury, in an attempt to contradict Jenkins’s claim of self-defense, the prosecutor commented on the fact that Jenkins had admitted that he remained silent for two weeks.   Jenkins was convicted.

The Supreme Court ruled that it did not violate Jenkins’s Fifth Amendment rights because he had chosen to take the stand to testify, and thus opened the an opportunity for the prosecutor to test Jenkins’s credibility as a witness.   Its decision, the Court ruled, turned entirely on the fact that Jenkins had opted to testify.   “Our decision today,” the Court said in a footnote, “does not consider whether or under what circumstances pre-arrest silence may be protected by the Fifth Amendment.  We simply do not reach that issue.”

That is an issue that arises directly under the Self-Incrimination Clause, because it depends solely upon what the guarantee of silence means in a setting other than a criminal trial in court.  The answer to that has drawn conflicting responses in lower federal and state courts, with ten of them ruling that the Fifth Amendment applies to silence before arrest and before police had a duty to give Miranda warnings, and almost that many courts ruling the opposite way.   In the new case now before the Justices, the Texas Court of Criminal Appeals itself split, in a ruling allowing prosecutors to use silence in that context to try to prove guilt.

The case goes back to the murders in December 1992 of the Garza brothers in the Houston apartment where one of them lived.  At the scene, officers found discarded shotgun casings.  A neighbor told police that he had heard shots, and saw a dark auto leaving the scene.  Others told the police that there had been a party at the apartment the night before the shooting, and that Genovevo Salinas might have been there.

Police went to Salinas’s house, and they discovered that his mother had a car that may have matched the one seen leaving the night of the shooting.   The police told of the shootings, and received permission to search.  Salinas’s father gave the officers a shotgun.

The police asked Salinas to go with them to the police station, so they could get fingerprints that would eliminate him as a suspect.  He went along voluntarily, and at no time was under arrest.  During an interview that lasted for about an hour, the officers questioned Salinas about others at the party, and he answered those questions.

One officer then asked him if the shotgun given them by his father would match the shell casings found at the scene.  Salinas looked down, but did not answer.  He was then put under arrest for an outstanding traffic ticket, as a way to ensure that he stayed at the police station.  They got a ballistics report showing that the shell casings matched the shotgun.   At that point, however, police opted not to press any charges, and actually told Salinas he was free to leave.

Later, a friend of Salinas went to the police station, and told the officer that Salinas had told him he did the killing.  Salinas was charged with two counts of murder.  But he was not taken into custody at that time and, in fact, was not arrested until some fourteen years later, when he was located elsewhere in Texas, living under a new name.

At the trial, prosecutors offered the testimony of the friend who implicated Salinas in the crimes, the potential link of the mother’s car to the crime, and the ballistic test results.  In a closing argument, a prosecutor made a brief mention of Salinas’s refusal to answer the question about what the ballistics test would show.  Salinas did not take the stand at the trial.  The trial ended in a mistrial; the jury could not agree on a verdict.

Put on trial a second time, the same evidence was offered by prosecutors.  The defense objected to the police statement that Salinas had remained silent when asked about the shell casings and the gun.  A defense lawyer said Salinas had a right to remain silent at that time, and had no duty even to talk to the police.  The judge rejected the protest.  Salinas did not testify.

In closing argument, a prosecutor stressed again to the jury that Salinas had remained silent when asked about the shell casings and the gun.  He told the jurors that an innocent person would have protested that the gun was not his, and that he was not at the scene.   The jury convicted Salinas, and he was sentenced to twenty years in prison.

After his appeal, raising the right-to-silence issue, failed in Texas state courts, concluding that prosecutors were not barred from commenting on pre-arrest silence, whether or not the accused individual testified at the trial.

Petition for certiorari

Salinas’s lawyers took the case on to the Supreme Court last August, asking the Justices to clarify whether and under what circumstances the Fifth Amendment protected an individual’s refusal to answer questions “before he had been arrested or read his Miranda rights.”

The main points of the petition was that the Court had left open that very issue in its 1980 decision in Jenkins v. Anderson, and that since then “federal and state courts are now openly and intractably divided over the issue.”  Even the Texas courts who had ruled against Salinas, the petition noted, acknowledged the split in court rulings.

Courts that are coming fresh to the issue, the petition said, are not engaging in any significant analysis of the question, but rather are “just choosing sides.”   Thus, it added, there is no reason for the Court to hold off further to see how lower courts will handle the dispute.

Prosecutors in Texas’s Harris County replied that there was no need for the Court to hear Salinas’s appeal.  The evidence at his trial that he simply “did not answer” one question put to him by police “did not constitute silence within the purview of the Fifth Amendment,” the state contended.  Salinas “answered the question by his non-verbal conduct and answered all other questions during the nearly hour-long interview,” it added.   And he made no effort to claim a right to silence under the Fifth Amendment, the document noted.

The issue Salinas sought to put before the Court, the prosecutors added, was “not squarely presented” because of the facts of this particular case.  And, in any event, they added, any error in the trial was constitutionally harmless.

Salinas’s petition was supported by the National Association of Criminal Defense Lawyers, noting that, every day, its lawyer members tell their clients not to answer police questions.  “There is nothing voluntary about a decision to answer police questions when a failure to answer can be evidence of guilt a trial,” so the use of pre-arrest silence directly amounts to compulsion to answer, in violation of the Fifth Amendment, that brief asserted.

Briefs on the merits

Genevevo Salinas’s brief on the merits opened with additional factual detail about the background of the case, stressing that the prosecutors had made little use of his silence during his first trial that ended in a mistrial, but put special emphasis on it, with heated rhetoric, at the second trial.   And, it noted, even though Salinas could have been given a sentence up to life in prison and that prosecutors had stressed that Salinas killed both brothers, the jurors — who had the task of suggesting a sentence — only asked for the twenty years that the judge imposed.

The bulk of the constitutional argument in the brief was that there is compulsion in Fifth Amendment terms whenever the state uses an individual’s silence against an individual, “because it leaves him no avenue to avoid incriminating himself.  If he speaks, his words can be used against him; and if he refuses to speak, the prosecution can argue that his silence is evidence of guilt.”

The risk of wrongful convictions is just as high if pre-arrest silence is parlayed into evidence of guilt, the brief contended.  “Silence in the face of police questioning is in reality so indeterminate that some states deem it irrelevant as a matter of state evidence law,” it added.

Turning to the argument that the Miranda rights mandate only applies to custodial situations, the brief said that putting psychological pressure on an individual to give evidence that will work against him “has nothing to do with custody….Custody is not necessary to trigger the Fifth Amendment.”   The right to remain silent, it noted, applies to those summoned to testify before Congress, and those required to answer tax questions from the Internal Revenue Service.

The brief argued for a simple constitutional rule: “Once the police initiate contact with a suspect, the Fifth Amendment right to remain silent kicks in.”

The Harris County prosecutors, in their merits brief, renewed their argument from earlier that a simple refusal to answer is not the same as invoking Fifth Amendment rights.  They added that Salinas’s defense lawyer did not claim that he was in custody at the time, nor did they argue that he had been coerced.  They also raised no objection, the document added, when the prosecutor referred to the failure to answer in closing argument, intimating that the refusal suggested guilt.

Directly addressing the meaning of silence, at least when it is “selective, transitory” and “in isolation,” the state brief said that it “fails to convey any facts or information either explicitly or implicitly.”   It is not even testimony, the document added.

The brief recounted the scene in the Houston police station, arguing that Salinas’s interaction with police fell far short of the kind of compulsion that the Fifth Amendment addresses: using torture to get a confession.  This encounter, it argued, was voluntary, non-custodial, and had none of the attributes of coercion.

That filing also argued that the Court’s 1980 precedent in Jenkins v. Anderson already has held that “use of an individual’s voluntary, non-custodial communication with police is not compelled merely because of its potential use at trial.”

It also argued that the reason the Court has banned prosecutors’ use of silence as evidence in the trial setting, as in Griffin v. California, is that it protects “the presumption of innocence.”  But that is a right, it added, that applies only at the trial.  The Griffin rule, it asserted, should not be expanded to apply in the pre-trial setting.

The federal government has entered the case in support of Texas, arguing that “the core right” protected by the Fifth Amendment’s ban on self-incrimination “is the right not to be compelled to testify against oneself at a criminal trial.”   What is at issue in this case, it added, is whether “Griffin‘s rationale should be extended beyond the trial context.  It should not.”

Like the prosecutors in Harris County, the Justice Department’s merits brief argued that, in order to gain the protection of the Fifth Amendment, one must invoke that privilege in order to “put the government on notice that Fifth Amendment rights are at stake.”  Silence, it said, does not do that.

Salinas’s argument, the federal brief went on, is based on an assumption that “his silence should be treated as an exercise of Fifth Amendment rights notwithstanding his failure to expressly invoke the privilege.”   Salinas could have invoked that right during the interview, even though he was not in custody, it added.   If mere silence is enough to invoke the right to remain silent, it said, that would “protect a great deal of conduct that is entirely unrelated to the Fifth Amendment,” such as a moment of uncertainty about what a question meant, or an attempt to find the answer that would most excuse one’s behavior.

Using such silence as evidence of guilt, the brief said, does not lower the government’s burden of proving guilt at a trial, beyond a reasonable doubt.

Salinas’s case, at the merits stage, again has the support of the National Association of Criminal Defense Lawyers, joined by its Texas affiliate, and by the American Board of Criminal Lawyers and by libertarian advocacy organizations.

Some twenty-six states have entered the case to support Texas, the Criminal Justice Legal Foundation, and prosecutors in Wayne County, Michigan.


If the Supreme Court granted review of this case just to extend its 1980 decision in Jenkins v. Anderson to the pre-arrest context, and thus to clear up the conflict among lower courts, that could be an easy decision to reach: the Fifth Amendment doesn’t apply there.  But if it accepted Genevevo Salinas’s case in order to consider the fundamental meaning of “silence” in police settings, it might well find the task very challenging.

One answer, of course, is the simplistic but technical one: silence is not an invocation of Fifth Amendment rights, so silence during a police interview before arrest is not even covered by the Fifth Amendment privilege against self-incrimination.   Another answer, though, is that silence is not the equivalent of speaking, so its meaning is totally opaque, and thus it is simply unfair to treat it as if it were an admission of guilt.

The Court, though, might choose to focus on what “compulsion” means.  It thus might conclude that compulsion has to involve some mode of coercion, even if not torture.  On the other hand, it might ponder the simple reality that sitting across from a police officer at a police station, being questioned about crime, hardly involves full freedom of choice.

And the Court could turn its attention primarily to “custody.”  It could conclude that it had added the custody predicate to the Miranda warnings requirement in order to give police an easy-to-follow constitutional rule.  And yet the notion might well be that an invitation to go to the police station, in the midst of an active crime investigation, is a whole lot different from being stopped on a street corner.

The Court starts with the premise that none of its precedents on silence, or compulsion, or custody have so far answered the question that Salinas has raised.  That suggests that it is confronted here with little choice but to extend a precedent, and that may not be attractive to a majority that is not known for extending the rights of criminal suspects.

Recommended Citation: Lyle Denniston, Argument preview: A penalty for silence?, SCOTUSblog (Apr. 16, 2013, 12:05 AM),