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ON THE DEFENSIVE: Supreme Court ruling breaks the silence

By: Anthony Cotton//July 23, 2013

ON THE DEFENSIVE: Supreme Court ruling breaks the silence

By: Anthony Cotton//July 23, 2013

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Most lawyers have assumed that the Constitution is unambiguous in preserving one’s right to remain silent.

The first prong of the Miranda rights specifically advises suspects that they have “the right to remain silent,” followed by the warning that “anything you say, can and will be used against you.”

But that assumption became shaky June 17 with the U.S. Supreme Court’s ruling in Salinas v. Texas. The court ruled a suspect who chose to remain silent when discussing matters with police did so at his own peril.

In Salinas, the defendant was questioned about a homicide. Shotgun shell casings had been found at the scene, and Salinas agreed to let police inspect his shotgun. When police asked him whether the shells would match his shotgun, Salinas did not answer the question.

It is axiomatic that prosecutors cannot comment on a defendant’s refusal to testify at trial. But in this case, the prosecution commented extensively about Salinas’ silence and refusal to answer questions about the shotgun shells.

The Supreme Court concluded that the right to silence must be affirmatively invoked, which means you’d better not be silent. Armed with this new rule, the police will respond by trying to question more suspects without formally subjecting them to interrogation. And, if the suspects refuse to answer a certain question, it is clear how this silence may be used.

It is disingenuous for the court to suggest that words, rather than actions, are necessary to affirmatively invoke a right. People frequently invoke their constitutional rights without uttering a word. A person who closes the front door when police ask whether they can search the home clearly has communicated a view of that request.

Constitutional rights exist as a check against police, meaning those rights limit police behavior independently of whether a person invokes those rights or even knows what they are.

Because of the expansiveness of Salinas, however, Fourth Amendment rights are placed in direct tension with Fifth Amendment rights. If a homeowner fails to affirmatively invoke by words a right to silence, the assertion of Fourth Amendment rights by actions now can be used against the homeowner in a criminal trial. Refusal to let police search the homes means the homeowner must be guilty.

The court’s decision needlessly complicates something quite basic. A person has the right to remain silent, and there is no more direct way to communicate one’s silence than to do exactly that.


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