The Right To Remain Silent

It is perhaps one of the most prolific pieces of case law in the legal system. Miranda rights. As a result, each time someone is arrested and in custody they must be read their rights or (Mirandized). They are as follows.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” 

 The Supreme Court’s decision in Miranda v. Arizona four different cases involving custodial interrogations.  In each of these cases, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world.  In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process.  In all the cases, the questioning elicited oral admissions and, in three of them, signed statements that were admitted at trial. 

Miranda v. Arizona: 

Miranda was arrested at his home and taken in custody to a police station where he was identified by the complaining witness.  He was then interrogated by two police officers for two hours, which resulted in a signed, written confession.  At trial, the oral and written confessions were presented to the jury.  Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count.  On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession

Vignera v. New York:  

Vignera was picked up by New York police in connection with the robbery of a dress shop that had occurred three days prior.  He was first taken to the 17th  Detective Squad headquarters. He was then taken to the 66th  Detective Squad, where he orally admitted the robbery and was placed under formal arrest.  He was then taken to the 70th  Precinct for detention, where he was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and answers.  At trial, the oral confession and the transcript were presented to the jury.  Vignera was found guilty of first degree robbery and sentenced to 30-60 years imprisonment.  The conviction was affirmed without opinion by the Appellate Division and the Court of Appeals.

Westover v. United States:

  Westover was arrested by local police in Kansas City as a suspect in two Kansas City robberies and taken to a local police station.  A report was also received from the FBI that Westover was wanted on a felony charge in California.  Westover was interrogated the night of the arrest and the next morning by local police.  Then, FBI agents continued the interrogation at the station.  After two-and-a-half hours of interrogation by the FBI, Westover signed separate confessions, which had been prepared by one of the agents during the interrogation, to each of the two robberies in California.  These statements were introduced at trial.  Westover was convicted of the California robberies and sentenced to 15 years’ imprisonment on each count.  The conviction was affirmed by the Court of Appeals for the Ninth Circuit. 

California v. Stewart:

 In the course of investigating a series of purse-snatch robberies in which one of the victims died of injuries inflicted by her assailant, Stewart was identified as the endorser of checks stolen in one of the robberies.  Steward was arrested at his home.  Police also arrested Stewart’s wife and three other people who were visiting him.  Stewart was placed in a cell, and, over the next five days, was interrogated on nine different occasions.  During the ninth interrogation session, Stewart stated that he had robbed the deceased, but had not meant to hurt her.  At that time, police released the four other people arrested with Stewart because there was no evidence to connect any of them with the crime.  At trial, Stewart’s statements were introduced.  Stewart was convicted of robbery and first-degree murder and sentenced to death.  The Supreme Court of California reversed, holding that Stewart should have been advised of his right to remain silent and his right to counsel.   

The Court  held that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely.”  Therefore, a defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

The Supreme Court reversed the judgment of the Supreme Court of Arizona in Miranda, reversed the judgment of the New York Court of Appeals in Vignera, reversed the judgment of the Court of Appeals for the Ninth Circuit in Westover, and affirmed the judgment of the Supreme Court of California in Stewart.

Recently 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.

I am not a lawyer. But this makes no sense to me. It sounds like a prosecutorial loop hole.

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.

Prosecutors argued that since Salinas was answering some questions therefore not invoking his right to silence and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection.

Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege `generally is not self-executing' and that a witness who desires its protection `must claim it.'"

The court decision was down its conservative/liberal split, with Alito's judgment joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia.

Liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. "In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning," Breyer said in the dissent.

Salinas was charged in 1993 with the previous year's shooting deaths of two men in Houston. Police found shotgun shells at the crime scene, and after going to the home where Salinas lived with his parents, obtained a shotgun kept inside the house by his father. Ballistic reports showed the shells matched the shotgun, but police declined to prosecute Salinas.

Police decided to charge him after one of his friends said that he had confessed, but Salinas evaded police for years. He was arrested in 2007, but his first trial ended in a mistrial. It was during his second trial that prosecutors aggressively tried to use his silence about the shotgun in closing remarks to the jury.

Salinas was sentenced to 20 years in prison. The Texas Court of Appeals and the Texas Court of Criminal Appeals upheld the conviction, with the latter court saying "pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies."

There was a time when you had to watch what you said. But now, you have to watch what you don't say. Staying out of trouble is so much easier. God help us all.

PR