Kristin J. Anderson, Ph.D.

Kristin J Anderson Ph.D.

"Benign" Bigotry

Bypassing the Fifth

The Supreme Court's Quiet Ruling on the Right to Remain Silent

Posted Jul 04, 2013

This June's blockbuster SCOTUS rulings on the Voting Rights Act and DOMA were met with a flurry of news coverage and social media responses.  But arriving with little fanfare was a quiet ruling with big implications for one of our basic constitutional rights—the Fifth Amendment right against self-incrimination.

In Salinas v. Texas the court considered whether or not someone has the right to remain silent during a noncustodial interview when police have not provided the Miranda warning. When a suspect is placed under arrest, she must be informed that she has the right not to speak to the police, that she can ask for a lawyer to be present during questioning, that she can refuse to answer questions at any point, but that if she does agree to speak, anything she says can be used in court to suggest guilt.

Genovevo Salinas was charged and convicted in the 1992 shooting death of two brothers in Texas. In the hours after the shooting, police invited Salinas to the station where they conducted an informal interview for about an hour. Salinas was not under arrest, was free to leave, and therefore the police did not Mirandize him.

Salinas offered his shotgun for testing against the casings left at the crime. During the interview, the cops asked him if his gun was going to match the casings at the scene. According to police, Salinas stopped talking, shuffled his feet, bit his bottom lip and started to tighten up.

During the trial, the prosecution used the fact that Salinas refused to answer that question, along with the accompanying behavior, as demonstration of his guilt. The Supreme Court has previously ruled that prosecutors cannot bring up a defendant’s refusal to answer questions as evidence of guilt as such a claim violates the Fifth Amendment that allows a suspect to refuse to talk with police. However, those previous cases involved custodial interviews (interrogations) after an arrest and after the Miranda warning was given. So the question for SCOTUS was, could Salinas’s silence be used as evidence of his guilt by the prosecutor during his trial when Salinas was not technically in custody and Miranda wasn’t given? In a 5-4 decision, the court ruled that yes the refusal to answer a question during a non-custodial interview can be used during the trial to suggest guilt.

This ruling has troubling implications.

How Do We Know We Have Rights if We're Not Told We Have Rights?

If Miranda is read, the suspect would know that she doesn’t need to answer questions and could invoke her Fifth Amendment right against self-incrimination at any time. In non-custodial interviews, however, Miranda isn’t given, so a suspect doesn't know she can invoke Miranda, and precisely because Miranda wasn’t offered or invoked, the Salinas ruling has established that a non-answer can be used against the suspect in court. How would someone know to assert the Fifth if they haven’t been told? This ruling requires suspects to know they have to speak up to invoke the Fifth and only then stop talking. But because they haven’t been informed of their right to silence, how many suspects will realistically know to invoke the Fifth? But invoking the Fifth is key because if they simply stop talking, without reference to their Fifth Amendment right, their silence can be used in court to suggest guilt. Yes, the reasoning is just that circular. This is an absurd expectation for a person without a law degree to understand, remember, and then to invoke.

Avoid Reading Us Our Rights for as Long as Possible

This ruling encourages an investigator to stay in informal non-custodial interview mode and not formal interrogation for as long as possible. If a suspect confesses while in custody without Miranda, it is likely that the confession will be ruled inadmissible during the trial. 

If an investigator can get a suspect to talk without providing Miranda, the suspect may not realize she can stop talking or that she can ask for an attorney. If a suspect confesses during a pre-Miranda non-custodial interview, a defense attorney cannot object to the confession on the grounds that Miranda wasn’t given because the suspect was technically free to go. As the ACLU argues, if pre-Miranda silence becomes more valuable to prosecutors than post-Miranda silence, police will delay arrest to avoid Miranda, thus undermining the privilege against self-incrimination and making false confessions more likely.  

Interrogators have already conveniently blurred the line between informal interview and formal interrogation where notice of rights is provided. Many informal non-custodial interviews occur at police stations in the same rooms used for interrogations. While a person is technically "free to go" and is not under arrest in these situations, that fact is easily forgotten when a person is sitting in an interrogation room being, well, interrogated, by cops. In those situations it behooves cops to keep the interview informal to extract as much unprotected information from the person as possible before a person realizes she’s a suspect, is given Miranda, stops talking, and asks for a lawyer.

Furthermore, while interrogations tend to be video recorded, informal interviews are not, so there is no record of what happens in non-custodial interviews. If the investigator coerces, manipulates, makes false promises, or lies (which is legal), there is no record of these maneuvers, and the suspect probably doesn’t understand that she can stop talking or leave. If an investigator can get a suspect to confess without Miranda—in this Supreme Court approved bypass of the Fifth Amendment—once the confession takes place, Miranda can be provided, the camera is turned on and the whole point of the Miranda warning is undercut.

Who is a Jury Going to Believe?

Under the Salinas ruling, the Fifth Amendment is undermined in another way. Now that an officer’s court testimony about a suspect’s silence can be used in court to suggest guilt, a suspect will feel compelled to take the stand in her own defense against what the officer reports. There are many reasons most defendants do not take the stand, but one reason is that juries are more likely to believe a uniformed cop, or an investigator in a suit, than a person already presumed guilty by some jurors just by virtue of sitting at the Defendant’s table (the orange jumpsuit and handcuffs don’t help one's credibility either).

Cops Make Lousy Lie Detectors

Countless cop shows teach viewers that those earnest (if sometimes flawed) TV crime fighters doggedly and accurately pursue, arrest, and convict the right person for the crime. In reality, cops are pretty crummy when it comes to accurately reading and interpreting suspects’ nonverbal behavior. The fact that an investigator can testify in court that a person stopped talking, shuffled his feet, and bit his lip, as indicative of guilt may be persuasive to jurors but not particularly revelatory about actual guilt or innocence. A research study by Saul Kassin and his colleagues published in Law and Human Behavior found that when police investigators have been compared to untrained college students in the detection of true and false confessions, both groups perform at around chance—meaning you could toss a coin and be just as accurate. In fact, investigators performed worse than students. Compared to college students who interpreted true and false confessions correctly 59% of the time, investigators interpreted accurately only 48% of the time (and, alarmingly, they were more confident in their assessment). Investigators tend to over-presume guilt which leads to lousy lie and truth detection. Salinas allows these impressions to be used in court, and because jurors tend to believe that police interrogators are astute lie detectors, they are likely to be persuaded by these biased judgments.

While Salinas v. Texas received far less attention than other important decisions handed down in June, this quiet blockbuster undermines crucial Fifth Amendment safeguards and introduces bias into criminal proceedings that favor the prosecution and thwart individual liberty.

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