The Supreme Court’s June Swoon

We’re deep into June now, when SCOTUS traditionally launches a volley of end-of-term decisions. I’m anxiously awaiting decisions in the SSM cases, but no word on them yet. However the Supremes did put out a whopper of a 5th Amendment case, which reminds us once again that conservatives love them some big ol’ government, so long as it’s being used in a traditionally authoritarian manner.

The case dealt with whether remaining silent invokes the right to remain silent, and the Court decided it didn’t. Chew on that for a moment.

Here’s the case in a nutshell. When answering police questions about a murder, Genevevo Salinas initially answered ther questions, then remained silent when asked if the shells found at the scene would match his gun. At trial the prosecutor introduced his silence as evidence of guilt. The Court had to determine whether this violated the right to self-incrimination.

It turns out that if Salinas had explicitly announced he was invoking his right to remain silent, his silence could not be used against him, but because he simply exercised his right without explicitly invoking it, his exercise of the right was not an exercise of the right.

From the opinion:

The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not

No, the critical question is whether remaining silent is itself an invocation of the right to be silent. It is. No other right has to be explicitly invoked. To invoke the right to speak, you do not need to announce your intent, you simply speak. To invoke your right to free exercise of religion, all you have to do us pray, silently, without anyone knowing.

But Alito puts great emphasis on the government’s right to any and all evidence that isn’t the witness’s direct testimony.

The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony.” Garner v. United States, 424 U. S. 648, n. 11 (1976)…

That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951) , or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer… In these ways, insisting that witnesses expressly invoke the privilege “assures that the Government obtains all the information to which it is entitled.” Garner, supra, at 658, n. 11…

[P]opulaf misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See

Yes, government has a need (an “entitlement,” as Alito claims, is dubious) to relevant information about a crime. But if Alito thinks the police couldn’t recognize the implications od Salinas’s silence, and either argue to Salinad that the testimony wouldn’t be incriminating or offer him immunity suggests a naïveté that beggars belief. And given that Salibas was tried and convicted, and his silence used as evidence against him, in what fantasy universe can we be asked to believe that the government had any hint of doubt about his “reasons for refusing to answer,” or that the courts, from trial court to SCOTUS have had any difficulty knowing those reasons?

Thank you, Justice Alito, for this exercise in legal sophistry.

Fortunately this legal theory did not get a majority (Thomas and Scalia concurred in the judgement, but not the reasoning), so this legal argument is not actually law that binds lower courts. But the juggling by which Alito reached his decision, and the carelessness with which Thomas in his concurrence claims that “A defendant is not “compelled . . . to be a witness against himself” simply because a jury has been told that it may draw an adverse inference from his silence.” The man simply does not understand how a refusal to self-incriminate readily gets transmuted into a self-incrimination–it’s a catch-22.

But at least the plurality opinion provides an escape from this bnd that does not require sitting naked in a tree– you jut have to say the magic words, avada kedrava “I invoke my right to remain silent.” For Thomas and Scalia, be use this was a non-custodial questioning; because Salinas had not yet been read his rights. So even if Salinas had used the magic words, they wouldn’t exclude the non-testimony because he used them too soon. The loophole in police procedure this opens–always question people before reading them their rights, so if they invoke the 5th Amendment you can use their silence against the–either goes unrecognized by them or they simply don’t care.

The dissent, by Breyer, demonstrates a far better understanding of the purpose of the right against self-incrimination.

The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming “a witness against himself.”

It’s that straightforward, else the right against slf-incrimination becomes a shell game.

I become more and more persuaded that legal conservatives don’t understand the purpose of a Bill of Rights. They see it as a grudging grant of privilege to the citizens, a minimum grant, constrained by the state’s interests, rather than a constraint on the state.

About James Hanley

James Hanley is former Associate Professor of Political Science at Adrian College and currently an independent scholar.
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4 Responses to The Supreme Court’s June Swoon

  1. pierrecorneille says:


    Have you read Orin Kerr’s take on the case?

    He seems pretty much in agreement with you, although being a lawyer he has some interesting additional thoughts.

    One point that’s not clear to me: Don’t plurality decisions have some precedential value? I had thought that in plurality decisions, the narrowest point of agreement–in this case, whatever can be shown to be in common among the 3 members of the court’s opinion and the two concurrences–could govern as precedent. In this case, I imagine that someone situated very similarly to Salinas might expect the same sort of treatment.

  2. Matty says:

    This triggered a vague memory of being told that the right to remain silent had been weakened in English law but on checking it’s worse than I thought. The court can be draw conclusions from

    -Failure to mention a fact when questioned under caution before charge which is relied on in your defence.
    -Failure on being charged with an offence or informed of likely prosecution, to mention a fact which it would have been reasonable for you to mention at the time.
    -Failure or refusal to account for objects, substances or marks found on your person, in or on your clothing or otherwise in your possession, in the place where you were arrested.
    -Failure or refusal after your arrest to account for your presence at a place at or about the time the offence is alleged to have been committed.

    The first one I can almost understand the others are simply outrageous.

  3. lumbercartel says:

    I become more and more persuaded that legal conservatives don’t understand the purpose of a Bill of Rights.

    That’s awfully charitable of you. I’m rather less so — I believe that they’re not stupid enough to have missed all of those lectures and texts back in law school that explained the history and nature of the Bill of Rights. They just don’t like them and are doing their activist-judge best to reduce the inconvenience that the BoR causes (or alternately take the most advantage a strained interpretation offers.)

  4. James Hanley says:

    Pierre, I scooped Kerr by several hours, so I hadn’t read his before I wrote mine (I did look over there first to see if anyone had already written on it). But of course what Kerr lacks in quickness (joke!), he makes up for in thoroughness, and it’s always valuable to read his posts.

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