

Supreme Court to consider if silence can be evidence of guilt - adventured
http://www.reuters.com/article/2013/01/11/us-usa-court-silence-idUSBRE90A13P20130111

======
anigbrowl
It's worth reading the lower court decision for the case in question:
[http://www.leagle.com/xmlResult.aspx?xmldoc=In%20TXCO%202011...](http://www.leagle.com/xmlResult.aspx?xmldoc=In%20TXCO%2020110317714.xml&docbase=CSLWAR3-2007-CURR)

specifically this part:

 _Still, the United States Supreme Court has yet to decide what protections,
if any, the Fifth Amendment affords to pre-arrest silence when the defendant
does not testify and his silence is introduced by the State not for
impeachment but in its case-in-chief._

Salinas was convicted on both forensics evidence and testimony from his
erstwhile co-conspirator; a shotgun he freely admitted to owning matched
shells found at the scene of the crime, and his fellow criminal felt guilty
after having a dream about the victims and testified against him.

'Not for impeachment' above means that his silence was not offered as
dispositive of his guilt. There was plenty of other evidence to prove him
guilty in the jury's eyes. That evidence is not appealed from, nor is the
lawfulness of his arrest. Salinas' argument is that his conviction should be
overturned because the prosecution should not have even mentioned the fact of
his silence. You can't tell a jury that they must convict someone because the
person was silent when asked an incriminating question. But Salinas is
effectively arguing that the jury can not be informed of a question going
unanswered, which I don't think is supported by precedent.

In the event that the Supreme court agrees with Salinas (unlikely IMHO), what
will happen is that his case will be sent back to the lower court for a
retrial, all the same evidence will be introduced, except that the prosecutor
will studiously avoid mentioning this exchange. Then he'll be convicted again
because there's loads and loads of other evidence.

Refusal to answer a question when in custody cannot be adduced as evidence of
guilt. But even if you sit there and say nothing, the prosecution and police
are perfectly at liberty to describe how you began sweating profusely and
shaking when asked an apparently incriminating question. The prosecution may
not submit as evidence expert testimony about what this means ('only a guilty
person would react that way,') but the jury is perfectly entitled to draw its
own inferences.

Nor is there a binary choice between silence and lying. When the officer asked
Salinas if the shells from the murder scene would match his gun, Salinas could
have made a noncommittal answer like 'how should I know?' or suchlike.
Indications are that he had already voluntarily dug himself into a hole
(admitting to owning the gun, how long it had been in his possession, that it
had not been in anyone else's possession, and so on).

One other thing to bear in mind when reading the case is that appellate cases
are restricted to questions of _law_. With certain rare exceptions, they do
_not_ examine questions of fact, which is the job of the trial court (and
which is why if the conviction were overturned, another trial would take place
because an overturning is not the same as an acquittal). When you read an
appellate case, resist the temptation to imagine alternative interpretations
of the facts that might lead to a conclusion of innocence; that is a
determination for the jury, not the court. The appeals court is examining
whether or not the trial was conducted properly, not the credibility of
participants.

~~~
lmm
>'Not for impeachment' above means that his silence was not offered as
dispositive of his guilt.

Are you sure? The way I read it, "not for impeachment but in its case-in-
chief" means "as part of making its case, rather than to show that a witness'
testimony was false" - different evidentiary rules apply to evidence
introduced for impeachment (i.e. to show that a witness' testimony was false).
I see nothing to imply that his silence wasn't used as evidence for his guilt,
or that the jury knew to ignore it (how possible would that even be?)

>Salinas is effectively arguing that the jury can not be informed of a
question going unanswered, which I don't think is supported by precedent.

Surely that's the only way to ensure a suspect's silence will not be held
against him?

>In the event that the Supreme court agrees with Salinas (unlikely IMHO), what
will happen is that his case will be sent back to the lower court for a
retrial, all the same evidence will be introduced, except that the prosecutor
will studiously avoid mentioning this exchange. Then he'll be convicted again
because there's loads and loads of other evidence.

Sounds like we should have nothing to fear from a victory on his part then;
sure there will be the cost of a retrial, but it's not worth sacrificing vital
constitutional protections just to save the court a bit of work.

~~~
anigbrowl
Your first sentence is correct, that's what I get for writing too late at
night :-/ As far as the jury knowing to ignore it, that's what jury
instructions are for. But note that the court sustained the objection to the
police officer's inference that his silence was evidence of guilt, and
required the prosecuting attorney to elicit a description of his actions
(looking at feet, tightening up) in lieu of conclusory testimony about the
significance of same.

On the other hand, the prosecutors reference in the summing up is not
evidence. It's like pointing at a defendant and saying 'look! he sits there
showing no remorse. Ladies and gentlemen of the jury, is there any doubt that
this man is a cold-blooded criminal?' It's a an empty rhetorical argument, but
no more so than 'My client has the face of a baby, look how sweet and innocent
he is - you must acquit!'. Those statements aren't offered as facts for
consideration, but as the opinion of counsel, which the jury is free to
ignore. Witness testimony is supposed to be dry and factual; attorneys can
work themselves into Shakesperean fits of indignation if they feel like it (I
exaggerate, but not that much...I'd personally like to see stricter standards
about this).

 _Surely that's the only way to ensure a suspect's silence will not be held
against him?_

But the jury _is_ quite entitled to hold it against him. That's their call to
make. What's not allowed is for the _prosecution_ to say that the failure to
answer is legal proof of guilt. Failure to answer does not unask the question,
as it were.

I don't think we are sacrificing vital constitutional protections here. The
guy wasn't under compulsion, and the record shows that his silence wasn't used
as the basis of an improper arrest. The constitution is very explicit about
scope of the 5th amendment, and there's a good deal of precedent backing up
the court's decision.

------
ComputerGuru
Wow. You'd think it'd be obvious. The 5th amendment isn't a digital pin pulled
down to zero and magically switched on when the Miranda rights are read.

I'm going to hold out on my outrage until the Supreme Court comments, but
should they even hint at silence being a form of confession, I think that will
surely be regarded as the day the judicial system in the United States finally
jumped the shark for once and for all.

~~~
maratd
I agree with you, but the case isn't that simple. If he simply refused to
speak, that would be one thing. The problem is that he was talking and then
decided to stop right when an incriminating question was asked. The question
isn't whether his silence can be used as evidence as guilt ... but whether his
decision to stop talking at that specific moment can be.

It's always a good idea to keep your mouth shut when dealing with the cops,
from beginning to end, not just when you find out they're gunning for you.

~~~
ComputerGuru
Where do you draw the line? A police officer randomly walks up to you and asks
your name (which I believe is the one question you are required to answer, and
truthfully):

"How are you doing? Nice weather today, huh? What about that Bears game last
night?"

Oh, look. It's a rare friendly neighborhood police officer!

"Mind telling me where you're headed?"

I'm not going to lawyer up yet. Remember, I'm actually innocent and have no
idea where this is going.

"Very nice.. Say, do you live around here?" (knowing fully well you're
standing in your own drive way)

Yes, officer. As a matter of fact, I do. (Wondering where this is going, but
absolutely no reason to go hire a lawyer!)

"See anything suspicious last night?"

So far, so good. I'm not being accused of anything, will gladly answer.
Clearly I'm being asked to help and am not a suspect!

"So you _weren't_ home last night? Mind telling me where you were?"

Bells start ringing. Lawyer up or not at this point.

"Ah, so you don't have an alibi for last night and you _are_ in possession of
a 9mm weapon... How interesting"

Lawyer! (or silence)

DA to jury: "Ladies and gentlemen, we have here the sworn affidavit of Officer
Riley and you can see how the accused clammed up once asked about the weapon,
while being perfectly cooperative until that point, and answering all the
questions we asked him. As you can see, he's clearly got something to hide.
It's your duty as law-abiding patriotic citizens to see to it that he spends
the rest of his life in prison."

(This is especially believable for me as someone not immediately recognizable
as a minority living in a fairly affluent suburb. I have no reason to distrust
the police, and in fact, come across friendly officers all the time!)

~~~
krichman
And to drive the point home; let's suppose that you were out committing a
victimless crime such as smoking marijuana. Your choice may be whether you
admit to committing that crime or have your silence implicate you on this
crime.

~~~
madaxe
TWAD came about firstly to crush the chinese, then black people, then
mexicans, and now finally the poor.

Your entire criminal justice system is a mockery of the concept of "justice".
"Just"? Please.

Again, downvoted due to speaking the truth. I'm disappointed, HN.

The war on drugs started in California, to lock up Chinese immigrants who were
taking "American jobs". They smoked opium. 1909.

Next came Cocaine. Used to be rich white folks, but then black folks started
using it because it was getting mightily affordable, so you made that illegal
too, so you could lock them up. Because they were taking "American jobs".

Next, the mexicans. Hemp. Useful crop. Nope, it's Marijuana, the devil's own
drug. Lock them up too, keep them away from "American jobs".

Now, finally, there are no "American jobs", because you wanted everything
cheap, and yesterday, so pure economics pushed your productive labour force
overseas (nobody moved, but the centres of labour did). Cue mass unemployment
and drug use, as the underground economy is pretty welcoming. Whoops, don't
like them either, lock them up.

America was a nation built on immigration.

Now it's a nation built on incarceration.

~~~
ScottWhigham
No, he's not downvoted for "speaking the truth". He's being downvoted for the
hyperbole.

~~~
madaxe
You say hyperbole, I say history.

------
btilly
I would have thought that <http://en.wikipedia.org/wiki/Miranda_v._Arizona>
settled this question decades ago. The standard set there is that nothing a
suspect says is admissible UNLESS the suspect has been informed of his rights
to talk to an attorney, and to remain silent, had understood them AND
voluntarily waived them.

However Wikipedia points me at
<http://en.wikipedia.org/wiki/Berghuis_v._Thompkins> which indicates that this
protection has been considerably eroded from what I was aware it had been.

Hopefully this decision will not complete the erosion of meaningful protection
from self-incrimination under the 5th. (Though, given the court we have, I'm
not very optimistic.)

------
goodcanadian
From the article: "Texas opposed the appeal, saying that the protection
against compulsory self-incrimination is irrelevant when a suspect is under no
compulsion to speak, as Salinas was because he was not under arrest and was
speaking voluntarily."

So, because he was under no compulsion to speak, his refusal to speak can be
taken as a sign of guilt?

~~~
cpeterso
I'm reminded of the "Never, ever talk to the police" video from a few years
ago, a talk by a defense attorney and a veteran police officer. If you are
guilty, innocent, or even just someone who witnessed or reported a crime,
talking to the police cannot help you.

For example, Martha Stewart did time of conspiracy, obstruction of justice,
and making false statements; if she had not spoken to federal investigators,
her case might have ended differently.

[https://richardbrenneman.wordpress.com/2011/04/20/criminal-l...](https://richardbrenneman.wordpress.com/2011/04/20/criminal-
law-101-never-ever-talk-to-the-police/)

~~~
ok_craig
But isn't the point being made here that saying nothing could actively hurt
your case? So you're screwed if you talk and you're screwed if you don't.

~~~
yardie
It could hurt your case in a prisoners dilemma (they've got someone in the
other room who's confessing and whoever does it faster gets a light sentence).
But what do you gain by helping the police build a case against you? If
anything, talk to your lawyer and have the lawyer do all the talking.

~~~
repsilat
In a sense talking to the police is always a prisoners dilemma - the "don't
talk to the police" strategy is equivalent to defecting, and being a helpful
citizen is analogous to cooperating.

Statistically it's not in your interest to talk to the police. Talking to them
might help them catch a crook, but the payoff there is nothing compared to the
shit it might get you into. On the other hand, an effective police force is a
_good thing_ in society, and the effectiveness of the police is markedly
increased with a cooperative citizenry. So if you could have your way you'd
like everyone to talk to the police except for you, but the Nash equilibrium
is nobody talking to the police at all.

I think that being able to put immediate self-interest aside and "cooperate"
in PD-like situations is a large part of why our societies aren't god awful.
Pocketing your trash instead of throwing it on the street, helping someone
pick up the papers they've dropped, holding the elevator... they're not
universal cultural norms, none of them "pay off", but we do them and life is
better because we do.

As far as societies go, citizen self-interest is a loser's game. I haven't
figured out my position on this yet, but I wonder whether we might have a
moral duty to talk to the police, provided the aggregate good to society (of
1. cooperating in this instance, and 2. maintaining the "culture of
cooperation") outweighs the personal risk.

~~~
yardie
_I think that being able to put immediate self-interest aside and "cooperate"
in PD-like situations is a large part of why our societies aren't god awful._

There are so many factors that have gone into my conclusion to never cooperate
with the police willingly. Primarily, being a minority means I'm statistically
more likely to be harrassed, and god forbid, shot by one. In fact, the last
time I "asked" the police for help they ran my name for warrants first. My
cooperation in that instance could have ended up with me spending the weekend
in jail.

My self-interest is the preservation of my life and includes me not going to
jail on bullshit charges, the rest of society can cooperate if they want. I'm
not the only minority that thinks like this, following the media spectacle of
one black, Harvard professor.

------
jerrya
And yet, we are told by law professors, and cops, never to speak to the
police:

<http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html>

As well as the ACLU

[http://www.aclu.org/drug-law-reform-immigrants-rights-
racial...](http://www.aclu.org/drug-law-reform-immigrants-rights-racial-
justice/know-your-rights-what-do-if-you)

And flex your rights <http://www.flexyourrights.org/>

~~~
dechols
"Never speak to police" isn't explicit enough.

In many states, police can ask you to identify yourself. Some states require
you to answer this question.

Most states don't require you to provide identification, but some do. It's
also a good way to disarm the situation, so many lawyers recommend providing
your ID when an officer asks for it.

Beyond this, however, you should only have two things you say:

When the officer stops you:

"Officer, did I do something wrong?"

When the officer asks you any other question besides basic information (name,
ID, etc):

"Officer, my lawyer has recommended that I do not answer questions like this.
May I go?"

When your Miranda Rights are read:

Say nothing. Obey instructions.

~~~
5teev
Note also: they don't have to read you your rights unless you're already under
arrest and they want to question you.

<http://www.lawcollective.org/article.php?id=115>

~~~
darkarmani
They don't ever have to read your rights ... they just can't use your answers
in court.

------
charonn0
If failure to answer becomes evidence of guilt, then answering _is_
compulsory, and therefore falls under the 5th amendment.

~~~
rosser
_If failure to answer becomes evidence of guilt, then answering is compulsory,
and therefore falls under the 5th amendment._

This. A thousand times, this. Thank you for putting it so succinctly.

------
BurritoAlPastor
Misleading, especially the headline. The case doesn't directly concern the
admissibility or implications of 5th amendment refusal to testify; that's
settled law, as of Griffin v. California
(<http://en.wikipedia.org/wiki/Griffin_v._California>).

This case asks if 5th amendment rights only attach once a suspect has been
arrested. If the Court finds that the 5th amendment (and, by extension, the
Miranda rule) applies to pre-arrest interviews, then the Griffin rule applies,
and such silences are inadmissable.

------
DanBC2
We used to have a right to silence in England. Our current Miranda equivalent
police caution says:

> _You do not have to say anything, but it may harm your defence if you do not
> mention, when questioned, something which you later rely on in court.
> Anything you do say may be given in evidence._

We also tend not to have "loopholes" - someone not getting the correct caution
will have to go through years of expensive law . Their case isn't won just
because of a missing warning. (I think; I am not a lawyer.)

It's a shame. Right to silence may have started here:
([https://en.wikipedia.org/wiki/Miranda_warning#England_and_Wa...](https://en.wikipedia.org/wiki/Miranda_warning#England_and_Wales))

But is being attacked here:
([https://en.wikipedia.org/wiki/Right_to_silence_in_England_an...](https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales#Facts_later_relied_upon))

~~~
notahacker
"Being attacked" seems a bit strong and current for a change that passed into
law 18 years ago. If anything, protection for the defendant has been
strengthened since then with the introduction of a clause making that section
inapplicable to anyone questioned before they've had chance to speak with a
lawyer.

You have the right to remain silent. You don't have the right for the jury to
draw no "reasonable inferences" from your insistence on remaining silent.

------
chetan51
I actually thought the headline was a joke or a misrepresentation. Wow.

~~~
callahad
Well, it sounds like the instance in question hinges on the state transition
from an hour of freely speaking to sudden silence in the face of a specific
question. I can certainly _understand_ why a person would want to ascribe
significance to that transition, but...

------
majormajor
If there's no compulsion to speak, is there any compulsion to tell the truth?
(I guess lying in that scenario would fall under "obstruction of justice"?)

~~~
csense
> I guess lying in that scenario would fall under "obstruction of justice"

Yes. The police are allowed to lie to suspects, but suspects are not allowed
to lie to police.

Lying is one of the main tools police use to manipulate suspects into giving
up information or confessions.

Unfortunately, this means you can't trust the police under any circumstances.
You don't know what they know or believe about you. You may not have been
aware that something you were doing is a crime, and accidentally confess.

Since the police are allowed to lie, and they're trained, skilled and
experienced manipulators, if you think you're helping them do good things and
what you're telling them won't get you in trouble -- perhaps you are
completely innocent! -- you have no way of knowing whether these thoughts are
a correct analysis, or something they've carefully manipulated you into
believing so you'll help them send you to jail.

The thin paper shield of the Fifth Amendment is really all that stands between
just about everybody and prison, once the police and prosecutors have decided
to go after you.

That being said, it's not that police _as a whole_ are bad -- for every
politician pushing harsh penalties to be "tough on crime," every prosecutor
who's trying to advance her career by maxing her "lives ruined" score, every
judge who's receiving kickbacks to fill prison beds -- I'd say there are at
least a dozen, and quite probably many more, dedicated law enforcement
professionals out there who genuinely believe in truth and justice and putting
their lives on the line to protect innocent people, and try their utmost to
live up to those ideals.

It's just that, when you interact with them, you have no idea what type you're
dealing with, what they believe or have learned about you, or whether there's
some obscure regulation you've unknowingly been violating. So it's safest not
to take the risk. Same principle as not talking to strangers when you're a
young child -- for every sick pedophile or would-be kidnapper, there are at
least a dozen, and quite probably many more, strange adults who are simply
friendly ordinary people, but you just can't take the risk because the bad
ones are so good at manipulating you, you'll have no clue until it's far too
late.

------
headShrinker
"Light someone on fire and if they die, they are innocent."

Silence is neither an acknowledgment guilt or innocence, But the absence of
speech. I have never been so fearful of a verdict to such a question involving
the admission of guilt since the Salem witch trials. It's the sense of the
justices I question not so much the grounds of the case.

