Fifth Amendment Can't Shield Selective Answers

     (CN) - A murder suspect's silence during initial questioning by police can be used against him at trial, the sharply divided Supreme Court ruled Monday.
     Because Genovevo Salinas freely answer several questions posed by officers about two murders that had occurred in Houston, Texas, in December 1992, prosecutors were free to use his refusal to answer one specific question - about the murder weapon - at his trial, according to the ruling.
     Salinas had been a suspect in the murders of Juan and Hector Garza from the very beginning, but he eluded the police for nearly 15 years before he was tracked down and put on trial.
     During police questioning - but before he was arrested or read his Miranda rights - Salinas answered questions for more than an hour. He did not answer, however, when police asked him if the six shells found at the scene would match a shotgun found in his home.
     Instead, he looked down at the floor, bit his lip and "began to tighten up." After a few moments of silence, the police moved on to other questions, which Salinas answered, the opinion states.
     A ballistics test eventually matched the shells to the shotgun, and police also found someone who claimed to have witnessed Salinas admit to the murders.
     After an initial mistrial, Texas sought to show jurors how questions about the casings made Salinas go quiet in the interrogation room.
     Salinas argued that the silence merely represented Salinas invoking his Fifth Amendment right, though police had not charged him or read him read his rights.
     The trial court admitted the evidence, and Salinas was ultimately sentenced to 20 years to life in prison. On appeal, he argued that prosecutors had violated his right to stay silent.
     Prosecutors argued such silence does not have constitutional protection because of the other questions Salinas had answered and since he was not under arrest and was not compelled to speak.
     A plurality of the Supreme Court affirmed for Texas Monday, noting that Salinas never expressly invoked the privilege when the officer asked about the shells.
     "It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it," according to the lead opinion written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justice Anthony Kennedy.
     "Although 'no ritualistic formula is necessary in order to invoke the privilege' ... a witness does not do so by simply standing mute," Alito added.
     In an earlier case, the justices rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence because of his failure to cooperate, according to the ruling.
     "In so ruling, we explained that 'if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate,'" the decision states.
     In the current case, Salinas "would have us hold that although neither a witness' silence nor official suspicions are enough to excuse the express invocation requirement, the invocation requirement does not apply where a witness is silent in the face of official suspicions," Alito wrote. "For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we conclude that they do not do so together."
     In fact, "a contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society's interest in the admission of evidence that is probative of a criminal defendant's guilt," he added.
     Justices Clarence Thomas and Antonin Scalia concurred in the judgment and took aim at the 1965 case Griffin v. California in a separate opinion.
     Salinas had tried to support his claims with that case, which holds that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant's failure to testify.
     But Thomas and Scalia said Griffin lacks any "foundation in the Constitution's text, history, or logic."
     Griffin is furthermore "impossible to square with the text of the Fifth Amendment" and therefore should not be extended in any event, they wrote.
     Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Stephen Breyer in defending Griffin in a dissent.
     They said the majority's position effectively undermines the basic protection that the Fifth Amendment provides.
     "Circumstances, not a defendant's statement, tie the defendant's silence to the right," Breyer wrote. "Similarly, a prosecutor may not comment on the fact that a defendant in custody, after receiving Miranda warnings, 'stood mute' - regardless of whether he 'claimed his privilege' in so many words."
     It should have been obvious that Salinas had invoked his Fifth Amendment right to remain silent on the question of the spent shell casings since the question was posed in the context of a criminal investigation, the dissent states.
     Police had made clear that Salinas was a suspect in the murders; the interrogation took place at the police station; Salinas was not represented by counsel; and the relevant question "amounted to a switch in subject matter," it continues.
     "It was obvious that the new question sought to ferret out whether Salinas was guilty of murder," Breyer wrote.
     The basic problem with the majority's opinion is that having a clear "explicit statement" rule "poses a series obstacle to those who, like Salinas, seek to assert their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail," he added.
     It would be better "to pose the relevant question directly: Can one fairly infer from an individual's silence and surrounding circumstances an exercise of the Fifth Amendment's privilege?" Breyer wrote. "The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this court's case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today's case is clearly: yes."