Academic journal article Journal of Criminal Law and Criminology

The Sound of Silence: Evidentiary Analyses of Precustodial Silence in Light of Salinas V. Texas

Academic journal article Journal of Criminal Law and Criminology

The Sound of Silence: Evidentiary Analyses of Precustodial Silence in Light of Salinas V. Texas

Article excerpt

Table of Contents Introduction I.   Background      a. History and Purpose of the Fifth Amendment         1. Miranda v. Arizona         2. Use of Silence as Evidence: Impeachment and            Substantive Use            i. Impeachment Use of Precustodial Silence: Jenkins v.               Anderson           ii. Substantive Use of Precustodial Silence: Griffin v.               California         3. Examining the Constitutional Approach to Precustodial            Silence Further: Baxter v. Palmigiano      b. Salinas v. Texas      c. Salinas'. Thomas's Concurrence, Breyer's Dissent, and the         Use of Constitutional Arguments         1. The Narrow Constitutional Approach         2. The Broad Constitutional Approach II.  Analysis: Courts Should Use Evidentiary Analysis to      Determine Admissibility of Precustodial Silence on a      Case-by-Case Basis Conclusion 


Imagine the following scenario: you are a young immigrant who recently came to the United States. (1) You have moved into a poor, crime-ridden neighborhood in New York City. You intend to stay, at least temporarily, because the cost of rent is low and other immigrants of your ethnicity live in the area. One Friday night, you are invited to an acquaintance's home to celebrate his twenty-fifth birthday. The party spirals out of control, and amidst the commotion, gunshots ring out in the house. You and the other guests quickly leave the premises.

The next morning, police officers knock on your door. They tell you someone at the party last night was murdered and want to question you about the incident as a "person of interest." They ask you to come to the police station for brief questioning. You oblige. You answer their questions until they ask you whether you saw anyone suspicious at the party. You think you saw someone you know carrying a gun, but you are unsure and you do not want to falsely implicate him. Furthermore, if word were to get out in the neighborhood that you are a snitch, it could cut you off from the only friends and network you have in this country. In response to this question, "you shuffle [] [your] feet, [bite your] bottom lip, [clench your] hands in [your] lap, and [begin] to tighten up." (2) The police questioning becomes increasingly persistent, and sweat breaks out on your forehead. You refuse to answer the question, and decide to leave the police station. Soon after, the police arrest you for the murder.

Can a prosecutor use your silence against you in the subsequent trial for murder? In Salinas v. Texas, the Court presumably sought to resolve this question when it certified the question presented as "whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant's precustodial (3) silence as evidence of his guilt." (4) In the plurality opinion written by Justice Alito, the Court declined to answer this question, instead rejecting Salinas's Fifth Amendment claim because he did not expressly invoke his Fifth Amendment right to remain silent. (5) The plurality held that Salinas was "required to assert the privilege in order to benefit from it." (6) Thus, because Salinas never said, "I have the right to remain silent," "I plead the Fifth," or some other combination of similar language during questioning and prior to being in police custody, he could not claim Fifth Amendment protections. (7)

The Fifth Amendment states that "no person ... shall be compelled in any criminal case to be a witness against himself ... The Supreme Court has held that this provision prohibits the prosecution from using a defendant's decision not to testify at trial as evidence of his guilt. (8) The Court has also held that the same provision applies to a defendant's choice to remain silent during a custodial interrogation. (9) But the Supreme Court has yet to provide guidance regarding the admissibility of precustodial silence, resulting in "a large gray area in the law. …

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