Speak, or be sentenced: the high price of pre-arrest silence: Salinas v. Texas.

• Author: Odom, Andrew

1. INTRODUCTION

   "[T]he appellant remained silent," and "[t]he jury found [him] guilty of murder." (2) In Salinas v. Texas, the United States Supreme Court made a decision that narrowed Fifth-Amendment protection by excluding the pre-arrest context with law enforcement from Fifth Amendment. (3) The Salinas Court affirmed the decision of the Texas Court of Criminal Appeals, which allowed the use of a criminal defendant's pre-arrest silence as substantive evidence of guilt. (4) In so deciding, the Supreme Court disagreed with the reasoning of a majority of federal circuits, which previously extended the Fifth Amendment's protection of the right to silence to pre-arrest situations (5) and narrowed the rules pertaining to a defendant's right to silence. (6)

   The Supreme Court manifests a most explicit irony by holding that a defendant must expressly invoke "the right to remain silent." (7) The right recognized throughout the Supreme Court's Fifth Amendment jurisprudence underwent a "trimming back" of sorts with Salinas. In the past, the Supreme Court recognized the protection of a criminal defendant's right to silence, no matter the stage of an investigatory or criminal proceeding. (9)

   This case note highlights the changes to the Fifth Amendment privilege, specifically, the constitutional right to remain silent or the privilege against compulsory self-incrimination, as applied to investigatory proceedings. (10) In response to these changes, this note contends Salinas v. Texas leaves inconclusive guidance for states in that the Court issued a plurality opinion that required express invocation by the criminal defendant to take advantage of the constitutional privilege. (11) Consequently, this gives rise to an increasing role in state constitutional and evidentiary provisions to fill in the gaps of Fifth Amendment protection left by the Supreme Court. (12)

   Part II of this note surveys the decisions of the Supreme Court as well as those of the federal circuits on this issue. Next, Part III-A analyzes the reasoning of the Salinas v. Texas decision. Following this analysis, Part III-B explores the changes the Court's decision has on the Fifth Amendment's protections, and Part III-C offers a proposal of both state constitutional and evidentiary solutions to ensure that each criminal defendant gets adequate constitutional protection. Finally, Part IV concludes by reemphasizing the highlights of the decision and proposed solutions.

2. BACKGROUND

   1. The Supreme Court's Interpretation of the Fifth Amendment

      The Fifth Amendment's self-incrimination clause provides a relatively modest textual rule: "No Person ... shall be compelled in any criminal case to be a witness against himself ... The danger of self-incrimination found recognition during the founding debates over the ratification of the Bill of Rights to the Constitution of the United States of America. (14)

      At the Virginia Constitutional Ratification Convention of 1788, Patrick Henry warned that a Constitution without a Bill of Rights would lead to such a "strengthening [of] the arm of government" that confessions of crimes could be extorted. (15) Eighteen years earlier, George Mason drafted the pertinent Virginia text, which would later become the model for the Fifth Amendment to the United States Constitution. (16) The Founders believed such a privilege prevents the government from "run[ning] roughshod over an individual's basic right to liberty." (17) At the Constitutional Convention of 1787, James Madison drafted the text of the Fifth Amendment and "sponsored and shepherded" it through Congress. (18) Thus, the stage was set for the Supreme Court to interpret the Fifth Amendment through its jurisprudence.

      The interpretation of the Fifth Amendment in Salinas v. Texas seems, like many modern understandings of the amendment, to depart from historical understandings and the remaining jurisprudence seems to make less and less "common sense." (19) It is therefore helpful to begin with the changing modern interpretation of the Fifth Amendment by the Supreme Court and to review how the federal circuits addressed the issue of pre-arrest silence. (20)

      "[A] responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." (21) In Malloy v. Hogan, the Court considered the plight of Malloy, a criminal defendant given two years' probation for the misdemeanor crime of pool selling, a form of illegal gambling. (22) The trial court subjected Malloy to questions surrounding his previous arrest and conviction before a court appointed referee. (23) Upon his refusal to answer, the Superior Court of Hartford County placed him in contempt and sent him to prison. (24) On appeal, the United States Supreme Court made a statement by holding that the Fourteenth Amendment guaranteed Malloy the Fifth Amendment privilege against self-incrimination, effectively extending the protection of the Fifth Amendment to the states. (25)

      A year later, the Court in Griffin v. California considered whether a prosecutor's comment during trial on a defendant's failure to testify constituted a Fifth Amendment violation. (26) In Griffin, the criminal defendant refused to take the witness stand and testify as to his guilt, and the trial court instructed the jury that it could take his silence into consideration when deliberating on the weight of the evidence. (27) The prosecution's comment on Griffin's failure to testify was a violation of the Fifth Amendment for a number of significant reasons. (28)

      The Court in Griffin noted that the nervousness and excessive timidity of a defendant who is faced with accusatorial questions carry significant prejudice and that prejudice weighs in favor of a defendant's right not to testify. (29) In addition, the inferences a jury draws from a non-testifying defendant vary from comment on that failure to testify because a court's emphasis on silence as demonstrative of guilt to the jury will have a stronger effect than the defendant's refusal to testify alone. (30)

      Following Griffin, the Court announced in Miranda v. Arizona that statements obtained by police from defendants in an atmosphere dominated by law enforcement, absent a full and complete warning of constitutional rights, were inadmissible because such statements were obtained in violation of the Fifth Amendment privilege against self-incrimination. (31) The Miranda Court further noted in a heavily cited footnote that "[t]he prosecution may not, therefore, use at trial the fact that [a defendant] stood mute or claimed his privilege in the face of accusation," recognizing and applying the protection of the Fifth Amendment. (32)

      In Jenkins v. Anderson, the prosecution highlighted to the jury the fact that the suspect waited two weeks before coming forward with an admission of his actions. (33) The defendant was subsequently convicted of manslaughter, and the Supreme Court affirmed his conviction, holding that use pre-arrest silence is permissible for impeachment purposes without violating the Constitution. (34) The Jenkins Court noted that, although the Fifth Amendment protects a defendant throughout the trial, one waives such protection by testifying. (35)

      The Court resolved that the use of silence for impeachment purposes is permitted as it serves as an effective truth-seeking device and enhances the reliability of the criminal process. (36) Though passing on the issue of using pre-arrest silence to show guilt in the majority opinion, Justice Stevens' concurrence posits that the Fifth Amendment is "simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak." (37) Griffin and Jenkins provided guidance to the jurisdictions faced with the issue, and those circuits which allowed the use of pre-arrest silence to show guilt usually relied in part on Justice Stevens' concurrence in Jenkins. (38)

   2. The Approach of the Federal Circuits' in Applying the Fifth Amendment to Pre-Arrest Silence

      The federal circuits have split as they considered this issue. Most circuits, including the First, Sixth, Seventh, Ninth, and Tenth determined that the prosecution could not use pre-arrest silence as substantive evidence of guilt. (39) The Supreme Court agreed with the minority of circuits, including the Fifth and Eleventh, (40) when it upheld Salinas' conviction after the state used his silence in the face of police questioning. (41) In United States ex rel Savory v. Lane, the Seventh Circuit articulates a common trend among those circuits prohibiting prosecutorial use of pre-arrest silence. (42) Savory considered a defendant's refusal to talk to police about two recent murders. (43) The trend is to apply Griffin and the Fifth Amendment's protection broadly, as applying equally to a defendant's silence before trial as well as before arrest. (44)

      Those circuits supporting the use of pre-arrest silence had a harder time finding a uniform rule, with the Fifth Circuit finding that the privilege against self-incrimination does not prohibit the government's comment on "every communication or lack thereof' that could be incriminating. (45) The Eleventh Circuit focuses on distinguishing comment on "demeanor" evidence, including visible nervousness or agitation, from silence in the face of questioning. (46)

      The Sixth Circuit explicitly held that the Fifth Amendment right to remain silent extends to the period before an individual is in custody, (47) and that the point where custody occurs depends on a contextual analysis of how a reasonable man understands his situation. (48) In Combs v. Coyle, a prosecutor commented on a murder defendant's silence, using such as substantive evidence of guilt. (49) The Sixth Circuit recognized that, in both the pre-arrest and post arrest settings, the privilege against self-incrimination applies, (50) and that the policies behind the privilege are "substantially impair[ed]" when...