Lyle Denniston writes at SCOTUSblog:
If the sentiment that seems to run high in a Supreme Court hearing dictated how a case would come out, the Justices might well be on their way to declaring that the Constitution forbids prosecutors from telling juries that a suspect’s silence when talking to police in any criminal investigation means he is guilty. The argument Wednesday in Salinas v. Texas (12-246) showed the appeal of treating silence in response to police questions as too ambiguous to be allowed as proof of guilt.
But some hesitancy set in here and there, because several of the Justices were puzzled about how to write a new Fifth Amendment opinion that actually would work to protect the right against self-incrimination when a suspect meets with police, without being arrested or further detained and before “Miranda warnings” are required or given.
“Where is the line?” Justice Stephen G. Breyer kept asking, and when he was offered one by Genovevo Salinas’s attorney, it was not clear that there would be a majority to embrace it. The attorney, Stanford law professor Jeffrey L. Fisher, argued that a constitutional “right to remain silent” should be established for every suspect caught up in a criminal investigation as soon as it becomes evident — to the suspect — that the police “are turning against you,” or regarding you as a suspect.
At that moment, Fisher argued, there should be a “right to remain silent” and the prosecutor, at the trial later, should not be allowed to comment that the failure to answer a given question was essentially a confession of guilt. That is what happened to Salinas, a Houston man, when he accompanied police to a station for an hour-long interview, and answered every question except one — the one that would have linked him directly to a double murder.
Justice Anthony M. Kennedy suggested that the Court’s prior precedents had provided clarity on when Fifth Amendment rights applied, but Fisher was asking the Court to put those rights into “a gray area.” The professor replied that he was, in fact, arguing for a “bright line” so that the right to remain silent would be safeguarded for any individual “in a police investigation setting.”
In technical legal terms, Fisher was arguing that, in the pre-arrest context, when an individual is being questioned, the suspect should not have to explicitly claim the Fifth Amendment privilege in order to keep his silence in response to a damaging question from being used against him.
The state of Texas, with the support of the federal Department of Justice, told the Court that in no situation before trial should the Fifth Amendment privilege apply unless the individual explicitly, or by strong implication, says something to claim that right. While no prior precedent of the Court settles whether the Fifth Amendment does or does not apply in that circumstance, the Texas lawyer at the lectern Wednesday, Alan K. Curry, encountered a largely skeptical Court in reaction to his plea for such a flat limitation of Fifth Amendment rights.
Curry argued that, if an individual does not invoke the Fifth Amendment, then silence in response to a specific police question about the crime should be open to the prosecutor to use against the individual at the trial.
Ginger D. Anders, an Assistant to the U.S. Solicitor General, bolstered that argument in her turn at the lectern, but almost immediately drew a sharp retort from Justice Sonia Sotomayor. It is, the Justice said, ”such a radical position” to argue that “silence is an admission of guilt, that acts of commission and omission are the same” in indicating guilt.
Anders, who was treated somewhat more gently by the Justices than Texas’s lawyer had been, replied that the Supreme Court has always understood that when an individual meets voluntarily with police and is not in formal custody, that individual “is fully capable of asserting his rights,” and should do so if the officers press a question that the individual believes will be incriminating.
To extend Fifth Amendment rights to silence in response to a police question, the government lawyer contended, is to protect a great variety of reasons why an individual might not say something at such a point, and that would put a Fifth Amendment cloak around much that has nothing to do with self-incrimination.