The Supreme Court heard oral argument on Wednesday in Salinas v Texas, a case that involves the question of whether a suspect’s silence during police questioning can be used as evidence of his guilt during trial. And once again, the Obama administration has taken a position identical to the standard right wing position. Lyle Denniston has a recap of the argument:
“Where is the line?” Justice Stephen G. Breyer kept asking, and when he was offered one by Genovevo Salinas’s attorney, it was not clear that there would be a majority to embrace it. The attorney, Stanford law professor Jeffrey L. Fisher, argued that a constitutional “right to remain silent” should be established for every suspect caught up in a criminal investigation as soon as it becomes evident — to the suspect — that the police “are turning against you,” or regarding you as a suspect.
At that moment, Fisher argued, there should be a “right to remain silent” and the prosecutor, at the trial later, should not be allowed to comment that the failure to answer a given question was essentially a confession of guilt. That is what happened to Salinas, a Houston man, when he accompanied police to a station for an hour-long interview, and answered every question except one — the one that would have linked him directly to a double murder.
Justice Anthony M. Kennedy suggested that the Court’s prior precedents had provided clarity on when Fifth Amendment rights applied, but Fisher was asking the Court to put those rights into “a gray area.” The professor replied that he was, in fact, arguing for a “bright line” so that the right to remain silent would be safeguarded for any individual “in a police investigation setting.”
In technical legal terms, Fisher was arguing that, in the pre-arrest context, when an individual is being questioned, the suspect should not have to explicitly claim the Fifth Amendment privilege in order to keep his silence in response to a damaging question from being used against him.
The state of Texas, with the support of the federal Department of Justice, told the Court that in no situation before trial should the Fifth Amendment privilege apply unless the individual explicitly, or by strong implication, says something to claim that right…Ginger D. Anders, an Assistant to the U.S. Solicitor General, bolstered that argument in her turn at the lectern, but almost immediately drew a sharp retort from Justice Sonia Sotomayor. It is, the Justice said, ”such a radical position” to argue that “silence is an admission of guilt, that acts of commission and omission are the same” in indicating guilt.
Anders, who was treated somewhat more gently by the Justices than Texas’s lawyer had been, replied that the Supreme Court has always understood that when an individual meets voluntarily with police and is not in formal custody, that individual “is fully capable of asserting his rights,” and should do so if the officers press a question that the individual believes will be incriminating.
Think about the position being taken by the state of Texas and the DOJ in this case. They’re arguing that if the police are questioning someone and that person says “I refuse to answer that question because of my Fifth Amendment right against self-incrimination,” the prosecutor cannot use that refusal to answer in court as evidence of his guilt (the court settled that issue long ago and it is not being challenged here). But if the suspect merely refuses to answer the question without specifically saying it’s because of his Fifth Amendment rights, then the prosecutor can use that as evidence of guilt. What is this, a game of Simon Says? In no other situation do you have to explicitly invoke your constitutional rights before you have them.
Here’s a good rule of thumb: If you’re involved in a case involving criminal justice and the Bill of Rights and you agree with Texas, you’re almost certainly wrong.