Salinas v. Texas: pre-Miranda silence can be used against a defendant.

• Author: Gee, Harvey

"It's a little scary to me that an unanswered question is evidence of guilt." (1)

1. Introduction

   For decades, the Supreme Court has expressly declined to address whether the Fifth Amendment right against self-incrimination prohibits the State from using evidence of a non-testifying defendant's pre-arrest silence in its case-in-chief. But it did so last term in Salinas v. Texas, (2) a ruling that significantly affected the rights of Americans set forth in Miranda v. Arizona. (3) In Salinas, the Court considered whether the Fifth Amendment's protection against self-incrimination bars the admission of evidence about a defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt. However, the Court did not ultimately address this broad issue. Instead, a three-justice plurality only narrowly held that because Salinas did not expressly invoke his Fifth Amendment privilege in his pre-arrest, pre-Miranda police interview, his silence was admissible at his trial. (4)

   Despite its importance, Salinas received little media coverage relative to other, more closely watched cases regarding California's ban on same-sex marriage, (5) the federal Defense of Marriage Act, (6) the University of Texas's affirmative action program, (7) and voting rights. (8) However, this "sleeper decision" did not escape the attention of legal scholars. Awaiting the release of the Court's opinion, Professor David Harris remarked:

   Instead of having a protected right to silence, the suspect is forced to decide between three terrible choices: give a statement and implicate himself; lie, and be charged with perjury; or refuse to talk--as the Constitution says he can!--but have that silence used against him to prove his guilt. That's wrong, and the Supreme Court should not allow it. (9) After the Salinas opinion was announced, constitutional scholar Erwin Chemerinsky cautioned:

   The case is troubling because it is so divorced from reality.... There is a profound irony to the plurality's approach: exercising the right to remain silent by being silent is not sufficient to invoke that right. A defendant must speak in order to claim that right and likely must do so with exactly the type of "ritualistic formula" that the Court has previously rejected. (10) Salinas came as no surprise to Court observers who recognize that the Court, with occasional exceptions, is continually conservative in the area of criminal procedure. (11) This conservatism is especially evident in its recent Miranda rulings. (12)

   This Essay will discuss Salinas as part of a prolonged drama affording law enforcement license to conduct overarching investigations. The first act, Davis v. United States, (13) allowed a suspect to be continually questioned unless the suspect unambiguously requests an attorney. (14) The second act, Berghuis v. Thompkins, (15) required an invocation of the right to silence to be made unambiguously before the police are required to end the interrogation. (16) In the third act, Salinas allowed the pre-custodial silence of the defendant to be used as evidence of guilt in the prosecutor's case-in-chief. However, a close analysis shows this line of jurisprudence is based on a faulty foundation. Davis was wrongly decided because it was not faithful to Miranda, and Berghuis erroneously relied on the analysis in Davis. These cases, which weakened an already emaciated Miranda, wrongly served as legal precedent for Salinas.

2. PROVIDING CONTEXT: MIRANDA V. ARIZONA

   In 1966, Miranda became the Warren Court's most sweeping criminal procedure case, ensuring that an individual is accorded a meaningful Fifth Amendment privilege that can be enforced against overzealous police practices in an interrogation room. (17) As many Americans have gleaned from watching television crime dramas like "Law & Order" and its spin-off series, Miranda requires: a person be warned that any statement he makes may be used against him; a person has a right to the presence of an attorney; and if the defendant waives these rights, he must do so voluntarily, knowingly, and intelligently. (18) But these same television viewers may not understand how or when to invoke these same rights in practice.

   The importance of Miranda rights cannot be emphasized enough. Professors Stephen Saltzburg and Daniel Capra have summarized the purposes of Miranda as: (1) "creat[ing] a prophylactic rule to aide in judicial review" so a court can determine whether a confession is tainted by the absence of warnings, or is more likely to be voluntary because the warnings were provided; and (2) creating confidence that a voluntary confession is intelligently made by a person who is aware of the right to remain silent, and knows that any statements made can be used against him. (19) Regrettably, the Supreme Court's post-Miranda decisions, specifically Davis, Berghuis, and Salinas, have impaired Miranda's original clarity, making it difficult for the police and lower courts to determine the circumstances under which confessions may be obtained. (20) This has resulted in confusion and the tacit encouragement of police overreaching. (21) Today, the original Miranda protections are almost gone. After a suspect has been Mirandized, the suspect must unambiguously request counsel and expressly invoke his or her right to silence. Prosecutors can use a defendant's pre-Miranda silence, including non-verbal gestures like demeanor and conduct, against him or her. (22)

3. DAVIS V. UNITED STATES: AFTER BEING MIRANDIZED, A SUSPECT MUST UNAMBIGUOUSLY REQUEST COUNSEL

   Under Davis, any post-waiver remark made by a suspect that would have previously been regarded as an invocation, may be ignored. (23) In Davis, a sailor in the United States Navy was beaten to death with a pool cue on October 2, 1988. (24) His body was discovered on the morning of October 3, 1988, on a loading dock behind the Charleston Naval Base commissary. (25) The investigation gradually began to focus on another sailor, Operations Specialist Seaman Apprentice Robert Davis. (26) Investigators established there was a dispute between Davis and the victim over the results of a pool game played the night before. (27) Through a series of screening interviews, the Naval Investigative Service (NIS) discovered Davis had told others he was involved in the killing and shared intimate details concerning the beating. (28)

   Once taken into custody, Davis cooperated during the thirty-minute interview. prior to the interrogation, he was advised of his right to speak with an attorney and to have an attorney present during questioning, as is required by both Miranda and Article 31 of the Uniform Code of Military Justice. (29) Davis subsequently gave an oral and written waiver of these rights. (30) Approximately an hour and a half into the interrogation, Davis stated, "[m]aybe I should talk to a lawyer." (31) An NIS agent continued discussions with Davis in an attempt to clarify whether he was asserting his right to counsel. (32) The agent asked Davis if he was asking for a lawyer or just making a comment about a lawyer. (33) According to the agent, Davis stated, "[n]o, I'm not asking for a lawyer" and "[n]o, I don't want a lawyer." (34) After a short break, the NIS agents briefly reminded Davis of his rights under Miranda and Article 31, and subsequently continued the interrogation. (35) An hour later, Davis exclaimed, "I think I want a lawyer before I say anything else." (36) The NIS agents then terminated the interrogation. (37)

   Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas, wrote the majority opinion. (38) This opinion addressed two issues: whether an ambiguous request for counsel is enough to invoke a suspect's right to counsel under Miranda, and whether police officers must confine themselves to clarifying questions after an ambiguous request for counsel has been made. The majority decisively addressed these issues by stating that after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney, and that such questioning is not limited, by any means, to clarifying questions. (39)

   In two lengthy passages, the Court discussed the Miranda statements as setting up a suspect's right to counsel. In the first section, the Court noted Miranda's right to counsel is sufficiently important to criminal suspects in that it "requir[es] the special protection of the knowing and intelligent waiver standard." (40) The Court reiterated that "[i]f the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him." (41) Further, "if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." (42)

   In the second section, the Davis Court continued with its emphatic dicta regarding the application of the Miranda doctrine as it had evolved from Edwards v. Arizona (43) to Davis. In doing so, Justice O'Connor utilized a bipolar "yes/but" paradigm in explaining the majority's infirm reasoning leading up to its holding. She began by making four independent and definitive assertions that are consistent with Miranda's intent and reasoning, but then concluded with four contradictory ends, thus completely undermining those assertions.

   First, Justice O'Connor stated:

   We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who--because of fear, intimidation, lack of linguistic skills, or a variety of other reasons--will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. (44) Second, Justice O'Connor wrote:

   [W]e must consider the other side...