Argument focuses on whether the Fifth Amendment privilege should be extended to the pre-arrest and pre-Miranda setting; whether formal invocation of the privilege should be required; whether a clear line can be adopted to apply to non-custodial settings; and whether the government should be allowed to ask the jury to consider a defendant's silence to infer guilt, in Salinas v. Texas, _ U.S. _ (No. 12-246)
An issue the Supreme Court has yet to decide concerns whether "the Fifth Amendment privilege against self-incrimination permits a defendant to refuse to answer a question posed by law enforcement prior to arrest or the advisement of Miranda rights.” This issue has divided the lower courts. On Wednesday, April 17, 2013, the Court heard oral argument on this issue in Salinas v. Texas, _ U.S. _ (No. 12-246).
While questions during the argument hinted that some of the Justices may support extending the Fifth Amendment to the pre-arrest and pre-Miranda setting, there was uncertainty on whether the privilege would have to be formally invoked or how it would be triggered. For example, short of formal invocation, would responses to most of the questions of law enforcement with some silence trigger the privilege? When would words signal a refusal to answer questions. To what extent should the government be able to use silence at trial? As Justice Stephen G. Breyer and others asked, where would the Fifth Amendment line be drawn? See Transcript, at 5:19-20, 22-23.
Some of the key issues noted during the oral argument are highlighted:
- Invoking The Privilege: A substantial portion of the argument focused on whether the individual questioned must formally invoke the Fifth Amendment. Justice Ruth Bader Ginsburg started the questioning by asking whether the recent decision in Berghuis v. Thompkins, 130 S. Ct. 2250, 2256, 2259-2260 (2010) (restating that a Mirandized suspect must "unambiguously" invoke the privilege) should equally apply to an individual prior to custody or any Miranda warnings. Transcript, at 4:15-20. Petitioner's counsel, Jeffrey L. Fisher, disagreed that Berghuis involved silence or imposed this requirement which he contended would be contrary to Miranda. He later suggested that "the express invocation requirement in Berghuis" serves "to administer the Miranda prophylactic rule that the police have to stop asking somebody questions when they invoke their rights" but any silence could not be used against him. Transcript, at 24-25. Justice Elena Kagan distinguished Berghuis as a case involving the ability to invoke the Fifth Amendment to cut off further questioning from the situation whether silence could be used at trial to infer guilt. Transcript, at 25-26, 40-41. [Note: Berghuis cites to the right to counsel standard in Davis v. United States, 512 U. S. 452, 459 (1994) for the requirement that "the suspect must unambiguously request counsel."]
Respondent's counsel, Assistant District Attorney Alan K. Curry from Houston, Texas, urged the Court to require an invocation of the Fifth Amendment "during a noncustodial, voluntary interview." Transcript, at 28:22-24, 44:13-16. Assistant to the Solicitor General Ginger D. Anders, arguing as amicus curiae, also argued that prior authority indicated that the Fifth Amendment is "not self-executing" and must be involved. Transcript, at 47-48.
Justice Breyer wondered whether the petitioner "was trying to raise his Fifth Amendment right" by "remaining silent." Transcript, at 14. Chief Justice John G. Roberts, Jr. asked if an individual invokes the Fifth Amendment by stating, "it's getting late. I think I'm done and going to go home" which may be "as promative as the silence." Transcript, at 17-18. Petitioner's counsel noted that there were many "permutations." Transcript, at 17:15, 26:23. He noted that the words could be admitted but the government could not use the silence to infer guilt. Justice Kagan noted that formal invocation is not required at trial or after Miranda rights have been given. Transcript, at 49. The Solicitor General's Office responded that the setting "highlights the fundamental difference" from a "voluntary situation." Transcript, at 50.
Petitioner's counsel asked, as a policy matter, "whether there's any good reason to require an express invocation"? Transcript, at 12-13. He urged there was not and such a rule would be "unnecessary, unfair," and "unadministrable." Transcript, at 13.
- Extending Griffin: The petitioner's counsel asked the Court to extend the rule in Griffin v. California, 380 U.S. 609, 615 (1965), which bars the government from commenting on the defendant’s silence at trial under the Fifth Amendment. As he framed the issue: "is there any reason to distinguish for purposes of the Griffin rule" from the investigatory questioning setting? Transcript, at 22:13-14.
- Miranda Footnote 37: In Miranda, the Court noted: "In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966). The viability of this footnote was considered during the argument. Transcript, at 21-22, 41-42. Respondent's counsel noted there was "some ambiguity" from the footnote. Transcript, at 43:11-14. [Note: In its amicus brief, the Solicitor General contended the footnote "was dicta" which was not followed in Doyle v. Ohio, 426 U.S. 610, 616-19 (1976). See Brief Amicus Curiae of the United States in Support of Respondent, at 13 n.1 (March 29, 2013).]
- Compulsion: The Fifth Amendment provides: "No person ... shall be compelled in any criminal case to be a witness against himself." So when does compulsion arise in a pre-arrest or pre-Miranda setting, as Justice Sotomayor asked. Transcript, at 45:4-5. The Solicitor General's Office noted that during a voluntary interaction "there is no coercion because it's not a custodial situation" and an individual remains "fully capable of deciding whether or not to assert his rights." Transcript, at 48:20-25.
- The Use And Context Of Silence: The heart of the case concerns whether the government can ask the jury to consider the defendant's silence. Transcript, at 30:16-18. Respondent's counsel noted that silence largely depends on context: "We're not asking the Court to say that every time silence occurs that's necessarily going to be probative, and every time silence occurs that's necessarily going to be something that we utilize." Transcript, at 32:22-25. Silence can result in multiple inferences, such as the individual wants to discontinue talking or "he's having difficulty coming up with an exculpatory response," or "he can't think of a good answer" or "he is worried about the question" or his response may "incriminate him," he may "have trouble coming up with an exculpatory answer," he may have strategic reasons for silence to see the direction of the questioning, he "could be dismayed or shocked momentarily because the question reveals that the police have more evidence than he thought they did." Transcript, at 34-35, 54-55. The Solicitor General's Office noted that "an objective standard" would apply to the setting. Transcript, at 57-58. Justice Kagen described this case as one involving "selective answering" of questions. Transcript, at 37:19-20, 38:14-18. Justice Sonia Sotomayor described "a radical position, that silence is an admission of guilty." Transcript, at 48:7-9.
Petitioner's counsel suggested that "hard cases" were unlikely to arise if the Court extended the Fifth Amendment privilege since the government would have "little motivation" to test the line. Transcript, at 9.
- Admissibility Of Associated Evidence: The hearing identified different categories of evidence that may result from an individual's contact with law enforcement. For example, the words in response to questioning could be admitted. Petitioner's counsel noted that "a material omission from a statement is not the same as silence." Transcript, at 16:12-13. Petitioner's counsel noted that "physical demeanor evidence," including he was visibly nervous, was admissible. Transcript, at 8, 61. The question was whether the Fifth Amendment permitted silence or the refusal to answer to be admitted at trial.
- Clear Lines: To the extent that the Fifth Amendment would be extended, the Justices posed a number of hypotheticals to test the boundaries. For example, Justice Anthony M. Kennedy asked whether the government could introduce evidence that instead of silence, the individual responded to questioning by stating "Well," and then crying. Transcript, at 6-7. Petitioner's counsel contended that while the one word would be admissible, the government should not be allowed to introduce the silence and refusal to answer to show guilt. Transcript, at 7. Justice Samuel Alito also wondered about drawing a line concerning a variety of factors, such as: "Where was it held? What was the nature? Who initiated it? Was the person really under suspicion? What was the purpose of the -- of the questioning?" Transcript, at 27:15-18. Petitioner's counsel asked for the line to apply to an "investigatory interview" but would not apply it to other government questioning settings involving tax, immigration or other matters. Transcript, at 27-28. In drawing a line, Justice Kennedy wondered whether "a gray area opinion" would be issued to covered the different settings, "Miranda, no Miranda, custody, not custody." Transcript, at 21:1-4. During the argument, the Solicitor General's Office noted that "the question is whether you want a broad, prophylactic rule that will protect a great deal of conduct that -- that has nothing to do with the exercise of the right." Transcript, at 5714-17.
Whether the Fifth Amendment will be extended to investigatory interviews will be decided before the end of the Term. The opinion may also provide guidance on whether any privilege must formally be invoked or is invoked under the circumstances. The opinion will likely note the circumstances, if any, in which silence during a voluntary investigative contact may be used at trial. See also Briefs and other materials in the case.
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