Using a Houston Murder Case, the Supreme Court Quietly Strangles the Right to Remain Silent

You May Not Have the Right to Remain Silent
On an early December morning in 1992, two brothers were shot in a Houston home. There were no witnesses. The HPD's investigation led them to Genovevo Salinas, who had been at a party with the victims the evening before. Salinas agreed to accompany the police officers to the police station and even gave them his shotgun to analyze. Salinas voluntarily spoke to the officers for about an hour, but then, when they asked him whether ballistics testing would show that the shells at the crime scene would match up with his shotgun, Salinas clammed up and refused to answer. Instead, and keep in mind this is coming from a police report, Salinas, "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." Because Salinas had voluntarily accompanied the officers to the police station, the officers were not obligated to read him his Miranda Rights.

There was not, at that point, enough evidence to arrest Salinas for the murders, but evidence (a statement by someone who said he heard Salinas confess to the crime) later turned up and an arrest warrant was issued. Salinas, however, was gone. In 2007, though, he turned up living in Houston under an assumed name and was arrested for the murders.

At trial, the prosecutor commented on Salinas' failure to answer the officers' question -- the prosecutor told the jury that "an innocent person'" would have said, "What are you talking about? I didn't do that. I wasn't there," but Salinas "didn't respond that way," he "wouldn't answer that question." Salinas' attorney objected that this commentary violated Salinas' Fifth Amendment right to remain silent (also remember it as the beginning phrase of the famous Miranda Rights).

The Texas Court of Criminal Appeal upheld the conviction unanimously. The Supreme Court, split 5-4 along the predictable ideological lines, also voted to uphold the conviction. To be completely accurate, Justices Alito, Kennedy and Chief Justice Roberts decided that Salinas had to expressly invoke his right to remain silent, and because he did not do so, the prosecutors' comments were constitutionally valid. Justices Thomas and Scalia agreed with the result, but would have gone further and ruled that even if Salinas had explicitly invoked his right to remain silent, the prosecutor could have commented on his silence. The four liberals would have found that Salinas' Fifth Amendment rights had been violated. (It is worth noting that this shows how far to the right the Texas Court of Criminal Appeals is; it is also worth noting that that the CCA is filled with unimpressive legal minds).

While this case hasn't gotten the media attention that some of the Court's "bigger" cases get, it is important because it will affect near everyone who gets caught up in a police investigation. Criminal defense attorneys always tell you to "keep your mouth shut." Well, now this case has made that proposition a bit muddier. If you have not been arrested and Mirandized and you just "shut up" during police questioning, the prosecution will now be able to comment on it (n.b., the keep your mouth shut rule still applies if you have been arrested). Also, now a person has to invoke their Fifth Amendment rights explicitly, not just "stand mute." But it's not clear what specifically a person has to say. Most people, and especially those who are being questioned by the police, probably do not know which constitutional amendment (did you?) to invoke. Or perhaps something less strict is valid -- the Court's ruling does not tell us though.

This case is best understood as a project that has been ongoing since President Nixon -- efforts by the conservative justices to narrow the liberal Warren Court rulings that were sympathetic to criminal defendants from the 1960s (like Miranda) without explicitly getting rid of Miranda altogether -- think about the implications for any cop shows/movies. This is yet another quiet pulling of the pro-prosecutorial noose tighter.

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