Russell and Duenes

Salinas v. Texas: If You Happen to Freely Talk to the Police . . .

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alitoI tend to agree with the New York Times editorial board. You may not hear that again for awhile, but truth is truth. As Orin Kerr has noted, in this recent spate of Supreme Court decisions, Salinas v. Texas may be a “sleeper,” yet it may also powerfully influence criminal procedure going forward. In Salinas, Justice Alito, writing for Justice Kennedy and Chief Justice Roberts, held that in a pre-custodial, non-Miranda police interrogation, your silence in response to a police question can be used against you at trial unless you expressly invoke your Fifth Amendment privilege against self-incrimination before the silence. What that means is, if the police invite someone down for a little chat at the station and he decides to go, he had better bone up on his Fifth Amendment jurisprudence before he gets under the hot lights, because his dumb silence can be turned against him.

How should one invoke her Fifth Amendment privilege? The Court does not quite know, stating that “no ritualistic formula is necessary in order to invoke the privilege.” 570 U.S. _____ *2 (2013). What the Court does know is you don’t get the privilege “by simply standing mute.” Id. Yet as Justice Breyer in dissent, and the Times editorial, argue – correctly, in my view – the average Joe does not know that he is required to officially invoke his Fifth Amendment privilege and likely also has no idea how he would go about invoking it. Justice Alito simply brushes this aside by saying that “forfeiture of the privilege against self-incrimination need not be knowing.” Id. at *10. In other words, the fact that you are not Perry Mason is no excuse.

I am all in favor of convicting the guilty, so the “law and order” part of me thinks there is something commendable about Alito’s opinion, and I’m sure there is. Yet I feel uneasy about the idea of the police having an even freer hand by which to exploit people’s ignorance of their rights. And I fear that we already have a criminal justice system where innocent people are put in too great a jeopardy of incurring criminal records, or even jail time, simply because they were at the mercy of a criminal procedure that is stacked against them from the start.



Written by Michael Duenes

June 18, 2013 at 8:08 pm

Posted in Duenes, Legal Matters

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