Salinas v. Texas: The Fifth Amendment Self-Incrimination Burden

Author:Matthew J. Thompson Jr.
Position:Staff Member, Capital University Law Review 2013?2014. I would like to thank Professor Scott Anderson for his valuable insight and guidance throughout writing this article. I would also like to extend gratitude to my family, friends, and the 2013?2014 Capital University Law Review Executive Board for their encouragement through such an arduous...
Pages:19-58
SUMMARY

The Supreme Court held by a plurality in the recent case Salinas v. Texas that a suspect’s pre-arrest, pre-Miranda silence can be used as a substantive inference of guilt. This note critically examines Salinas v. Texas and argues that its implications unconstitutionally burden the policies underlying the Fifth Amendment. This note further provides a more practical solution to the complex problem... (see full summary)

 
FREE EXCERPT
SALINAS V. TEXAS: THE FIFTH AMENDMENT SELF-
INCRIMINATION BURDEN
MATTHEW J. THOMPSON JR.*
I. INTRODUCTION
The Fifth Amendment’s self-incrimination clause provides that [n]o
person shall be . . . compelled in any criminal case to be a witness against
himself.”1 From an early age, children are familiar with the concept of the
Fifth Amendment.2 Even if not “schooled in the particularsof the Fifth
Amendment legal doctrine, individuals still have beliefs about what is
fundamentally fair regarding the Fifth Amendment.3
Visualize the following scenario: Local police arrive at a suspects
home to talk about a theft that occurred in the suspect’s neighborhood.
The police ask the suspect to accompany them to the police station to
answer some questions, and the suspect, willing to help, agrees to
accompany the police officers to the station. After an hour of questioning,
the suspect notices that the officer begins to take a more aggressive,
accusatorial approach to the questioning. Finally the officer asks, “If we
were to search your home, we would find that stolen property, wouldn’t
we?” Unwilling to sound nervous answering such an accusatorial
question, the suspect remains silent for fear of possible incrimination.
After a few seconds of silence, the suspect answers a couple more
questions and the interview ends. A few days after the interview, the
police charge the suspect with the crime. At the suspect’s trial the
prosecutor uses the suspects interview silence as evidence of the suspects
guilt. The prosecutor explains to the jury that a suspect who is not guilty
would have explained his or her innocence in light of such accusations.
Copyright © 2015, Matthew J. Thompson Jr.
*Staff Member, Capital University Law Review 20132014. I would like to thank
Professor Scott Anderson for his valuable insight and guidance throughout writing this
article. I would also like to extend gratitude to my family, friends, and the 20132014
Capital University Law Review Executive Board for their encouragement through such an
arduous endeavor.
1 U.S. Const. amend. V.
2 See Salinas v. Texas, 133 S. Ct. 2174, 2182 (2013) (plurality opinion) (quoting
Michigan v. Tucker, 417 U.S. 433, 439 (1974)) (internal quotation marks omitted)
(“[V]irtually every schoolboy is familiar with the concept, if not the language of the Fifth
Amendment.”).
3 See id.
20 CAPITAL UNIVERSITY LAW REVIEW [43:19
After the jury reaches a guilty verdict, the suspect sits in disbelief that the
act of remaining silent could be used as evidence of guilt.
Despite the suspects disbelief, the Supreme Court held by a plurality
in the recent case Salinas v. Texas4 that a suspects pre-arrest, pre-
Miranda5 silence can be used as a substantive inference of guilt.6 This
note critically examines Salinas v. Texas and argues that its implications
unconstitutionally burden the policies underlying the Fifth Amendment.
This note further provides a more practical solution to the complex
problem of using a suspect’s silence as evidence of guilt. Part II begins
with the important Fifth Amendment history that led to Salinas v. Texas.7
Specifically, Part II.A of this note explains the Supreme Court’s Fifth
Amendment self-incrimination policy regarding interrogations.8 Part II.B
reviews and analyzes important Supreme Court cases regarding the use of
a suspects silence, including the Jenkins9 impermissible burden test.10
Part II.C explains the previous circuit court split on the use of pre-arrest,
pre-Miranda silence.11 Part III analyzes the Salinas v. Texas case and
argues that the plurality and dissenting opinions burden the policies behind
the Fifth Amendment.12 Finally, Part IV provides a workable and practical
bright-line solution to the complex problem of silence that does not burden
the policies underlying the Fifth Amendment.13
II. FIFTH AMENDMEN T SELF-INCRIMINATION BACKGROUND
A. Self-Incrimination Clause Policy and United States v. Bram
Supreme Court and Fifth Amendment critics both agree that, despite
the self-incrimination clause’s language being fundamental to our
constitution, “the law and the lawyers . . . have never made up their minds
4 133 S. Ct. 2174 (2013) (plurality opinion).
5 Id. at 218384. A pre-arrest, pre-Miranda setting refers to the period of time before a
suspect’s arrest and before a suspect has been read his or her Miranda rights. Id. at 2177
78. 6 Id. at 2183.
7 See infra Part II.
8 See infra Part II.A.
9 Jenkins v. Anderson, 447 U.S. 231 (1980).
10 See infra Part II.B.
11 See infra Part II.C.
12 See infra Part III.
13 See infra Part IV.
2015] SALINAS V. TEXAS 21
just what it is supposed to do or just whom it is intended to protect.”14 For
instance, in Murphy v. Waterfront Commission of New York Harbor,15 the
Supreme Court explained that it would “not do . . . to assign one isolated
policy to the privilegebecause the Court’s own treatment of the self-
incrimination clause utilizes a variety of policy considerations.16 Among
the self-incrimination policy considerations listed in Murphy, one policy
consideration in particular targeted governmental interrogation: “[A] fear
that self-incriminating statements will be elicited by inhumane treatment
and abuses.17 While the Murphy Court acknowledged interrogation as a
distinct policy among others underlying the self-incrimination clause, the
Court did not explain the policy’s origin or how the Court originally dealt
with cases involving governmental interrogation.18
The Supreme Court’s initial Fifth Amendment decisions and
interpretations did not materialize right away. More than one hundred
years had passed since the Fifth Amendment was first included in the
Constitution before the Supreme Court started focusing on cases involving
the self-incrimination clause.19 For instance, in Bram v. United States,20
the Court decided its first self-incrimination clause case regarding
governmental interrogation.21 In Bram, a fellow sailor accused the
defendant of murdering another member of the ship’s crew, and the police
arrested the defendant when the ship docked.22 While in custody, a police
detective secluded the defendant in a private office, stripped the defendant
of his clothes, and accused him repeatedly of murdering his fellow crew
member.23 In response to the accusations, the defendant made statements
denying any guilt and those statements were then admitted against the
defendant as evidence of a confession.24
14 Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 56 n.5 (1964) (quoting
Harry Kalven Jr., Invoking the Fifth AmendmentSome Legal and Impractical
Considerations, 9 BULL. ATOMIC SCI. 181, 182 (1953)) (internal quotation marks omitted).
15 378 U.S. 52 (1964).
16 Id. at 56 n.5.
17 Id. at 55.
18 See id.
19 Kate E. Bloch, Fifth Amendment Compelled Statements: Modeling the Contours of
Their Protected Scope, 72 WASH. U. L.Q. 1603, 1609 (1994).
20 168 U.S. 532 (1897).
21 Id. at 565. See also Bloch, supra note 19, at 1612.
22 Bram, 168 U.S. at 53637.
23 Id. at 539.
24 Id. at 53941.

To continue reading

FREE SIGN UP