Salinas v. Texas

The Supreme Court ruling in Salinas v. Texas is available in Adobe .pdf format.

"Supreme Court says pre-Miranda silence can be used by prosecutors in court," is the AP report by Jesse J. Holland, via the Washington Post.

The Supreme Court says prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.

The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.

Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

The high court upheld that decision.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

"SCOTUS: Silence can be used against defendant who didn’t claim privilege in voluntary meeting," is the ABA Journal coverage by Debra Cassens Weiss.

Justice Samuel A. Alito Jr. wrote the controlling opinion (PDF), joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Alito wrote.

The court had accepted the case to resolve a split of authority on whether prosecutors can use a defendant’s silence at trial, when the defendant’s interview with police takes place before a formal arrest. “But because petitioner did not invoke the privilege during his interview,” Alito said, “we find it unnecessary to reach that question.”

Justice Clarence Thomas, in an opinion joined by Justice Antonin Scalia, said he would rule against Salinas even if he had formally invoked the privilege. The prosecutor did not compel Salinas to give self-incriminating testimony, Thomas said, so Salinas’ claim should fail. “A defendant is not ‘compelled . . . to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence,” Thomas wrote.

Courthouse News Service posts, "Fifth Amendment Can't Shield Selective Answers," by Dan McCue.

A murder suspect's silence during initial questioning by police can be used against him at trial, the sharply divided Supreme Court ruled Monday.

Because Genovevo Salinas freely answer several questions posed by officers about two murders that had occurred in Houston, Texas, in December 1992, prosecutors were free to use his refusal to answer one specific question - about the murder weapon - at his trial, according to the ruling.

Salinas had been a suspect in the murders of Juan and Hector Garza from the very beginning, but he eluded the police for nearly 15 years before he was tracked down and put on trial.

Harvard Law prof Noah Feldman writes, "Clarence Thomas’s Legal Time Machine Zooms to 1789," for Bloomberg.

Don’t let the U.S. Supreme Court’s very contemporary cases on gene patenting and same-sex marriage fool you: At least one justice is still living in the 18th century and doesn’t care who knows it.

Justice Clarence Thomas followed his astonishingly consistent originalism in Alleyne v. U.S. today, joined by the court’s four liberals -- and none of its conservatives -- in holding that a fact that increases a defendant’s mandatory minimum sentence must be found true by the jury, not by the judge alone.

Just a few minutes earlier, however, it was announced that Thomas had provided the deciding vote in Salinas v. Texas, arguing that a defendant’s exercising the right to remain silent can be used by the prosecutor to argue to the jury that silence is evidence of guilt.

From a policy perspective, these two opinions, one liberal and one conservative, make no sense. The only way to reconcile them is to enter the mind of Justice Thomas, in which the court’s job is to bring us back to the nation’s founding and damn the consequences.

Thomas’s opinion on what facts must be submitted to the jury derives from a series of opinions he has written over the past 15 years, all of which amount to a concerted historical attack on the way modern legislatures and judges handle criminal punishment. In the good old days, the English common law defined a limited set of felonies, and they all had the same punishment: death. Like the Islamic Shariah, the Jewish Halakha and many other early legal systems, the common law wasn’t so much bloodthirsty as designed to operate in an environment with little formal police enforcement. Capital punishment was counterbalanced by a low likelihood of detection -- kind of like harsh sentences for insider trading.

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