Tuesday, June 18, 2013

Did You Just Lose Your Right To Remain Silent?

Thoughts on the “Sleeper” Criminal Procedure Case of the Term, Salinas v. Texas

This morning the Supreme Court decided a very important criminal procedure case, Salinas v. Texas, by a 5-4 vote. I’m guessing that you haven’t heard of Salinas. And it probably won’t get much attention in the press. But it should: Salinas is likely to have a significant impact on police practices. And it’s a fascinating case for legal nerds, too. So I thought I would explain the issue in Salinas and offer some thoughts on why it matters and what it might mean. 

I. A Brief History of Fifth Amendment Protections

To understand Salinas, you need to know a little bit of Fifth Amendment history. Before 1965, the Fifth Amendment right against self-incrimination had been interpreted pretty consistently to provide only a relatively narrow right. Under the pre-1965 cases, the Fifth Amendment only gave you a right to decline to answer the government’s questions when asked a question under the threat of judicially-imposed punishment and when you formally asserted the right. Imagine you’re a witness called to the stand in a criminal case. If you don’t answer the prosecutor’s questions, you can be held in contempt of court and jailed. Under the Fifth Amendment, if you have a reasonable belief that the answers to the prosecutor’s questions will implicate you in a crime, you can “plead the Fifth” and not have to answer the questions. Under that pre-1965 view, all the Fifth Amendment does is let you assert your right ex ante to get out of answering a question when otherwise the law would force you to answer it under threat of legal penalty. (The thinking as to why you need to assert the privilege is that only the suspect knows when his answer would be self-incriminating; the suspect needs to assert the privilege so a judge can step in at that point and assess whether the privilege applies.)

Two cases in the mid-1960s made important cracks in that doctrinal edifice. First, in Griffin v. California, 380 U. S. 609 (1965), the Supreme Court held that the Fifth Amendment did not permit the government to comment on the defendant’s failure to testify at trial. Pre-Griffin, if the defendant chose not to testify, the prosecutor could argue that the defendant’s silence showed his guilt. (After all, an innocent person wrongly charged with a crime surely would want to explain his innocence to the jury, right?) Griffin reasoned that it would gut the Fifth Amendment if the prosecutor could argue that silence was guilt; the defendant would in effect be forced to testify to avoid that adverse inference. So the “spirit” of the Fifth Amendment barred commenting on the failure to testify even though the defendant did not formally plead the Fifth and was not compelled to speak by force of law.

The second case that cut against the traditional understanding of the Fifth Amendment was Miranda v. Arizona, 384 U.S. 436 (1966), just a year after Griffin. Miranda is the famous “right to remain silent” case, and it held that before the police can admit a defendant’s statement during a custodial interrogation, the police must first inform him of his rights and then obtain a waiver of his rights. The reasoning of Miranda was that custodial interrogation was special. When a person was in custody and was questioned by the police, the environment was so coercive that the Court needed a set of special protections (the warnings and waiver) to ensure that the answers to police questions were voluntary and not coerced. 

The complex set of rules announced in Miranda was justified as a way of protecting the Fifth Amendment right. But the fit has always been awkward. Indeed, Miranda was actually argued as a Sixth Amendment case, not a Fifth Amendment case; it was a surprise to everyone when the Court announced that the Miranda rules were part of the Fifth Amendment. And the Court has struggled to find the right place for Miranda in constitutional caselaw ever since. Miranda was a strange fit for the Fifth Amendment because it didn’t fit the classic requirements of a Fifth Amendment right. It applied to police interrogation when there was no threat of judicially-enforced punishment, and it didn’t require a defendant to assert his right. To the contrary, the rights automatically existed in custodial interrogation unless they were formally waived. Nonetheless, the Court announced the Miranda rules as a prophylactic set of protections for “real” Fifth Amendment rights (a characterization the Court stayed with in Dickerson v. United States, 530 U.S. 428 (2000)). And in Footnote 37 of Miranda, the Court included dicta extending the Griffin rule to custodial interrogation:

For the rest of the story: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/

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