Supreme Court to consider if silence can be evidence of guilt

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I got my head straight, boss.

The question is not whether you have the right to remain silent. You have that right.

The question under consideration is whether or not the courts can accept as evidence of guilt the silence of someone who is not under arrest, is voluntarily answering questions, and then suddenly stops answering questions.

In this case, Texas was able to get the defendant’s sudden silence introduced as evidence. The 5th Circuit Court of Appeals later said that federal courts are split as to whether or not “pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt.”

SCOTUS must resolve this question so federal courts are not applying the law unevenly.

I wanna see this apply to 0bama and Holder, Napolitano and Reid.

So, Miranda is imagined to only kick in when police officers say it kicks in?

Any conservative agreeing with this needs to stop looking at it as being only thugs and gangbangers who would be deemed guilty for declining to be interrogated. Step into the legal reality that it could very well be you.

If the court is foolish enough to go along with this, you’ll eventually get door to door interrogation teams hauling people off.

The Silence Police have now trumped the Thought Police.

Laz - you'll notice a lot more concern for the Constitution in these parts and talk radio than you did 2002-2008. Back then, every mention of the Constitution ended with “... is not a suicide pact!” and a sneer.

So much for all the Foghorn Leghorn honking about Texas being some sort of last redoubt for constitutional conservatives.

I’d feel a lot more comfortable if you had the presumption of innocent motives WHENEVER you decided to clam up. Let’s say you decide to be Chatty Cathy, but suddenly remember that YouTube video.... (no, not THAT one, in THAT one she merely forgot to wear her clothes, okay?)... the OTHER video, the YouTube video that states saying anything to a cop is suicide, innocent or guilty.

For those who are interested in the details:

REPLY BRIEF FOR PETITIONER

The State does not dispute that the question whether the Fifth Amendment precludes the prosecution from introducing pre-arrest, pre-Miranda silence in its case-in-chief is an extremely important and frequently recurring one. And the State acknowledges that federal courts of appeals and state
courts of last resort are deeply divided over the issue.
BIO 10-11.

Indeed, the conflict has grown even deeper since the petition was filed; last month, the Kentucky Supreme Court joined those courts holding that the Fifth Amendment prohibits the prosecution from using a defendant’s silence during pre-arrest questioning as substantive evidence of guilt. Baumia v. Commonwealth, ___ S.W.3d ___, 2012 WL
5877581, at *2-5 (Ky. Nov. 21, 2012).

The State nevertheless asks this Court to deny certiorari for two reasons. First, the State argues that the Texas Court of Criminal Appeals’ decision is correct on the merits. Second, the State asserts that this case is an unsuitable vehicle for resolving the conflict at issue.

Neither of the State’s arguments is persuasive. The State’s argument on the merits provides no reason to deny review in a case involving a deep and mature conflict – and is unconvincing even on its own terms. The State’s vehicle arguments – which, for the most part, depend on contentions it has never before advanced in this case – are specious.

This Court should grant certiorari and bring much-needed
clarity to this critical area of law.

1. The State’s defense of the Texas Court of Criminal Appeals’ holding does little more than echo that court’s reasoning. Specifically, the State contends that the prosecution may use a defendant’s refusal to answer pre-arrest questions from law enforcement against him because a person cannot face any “official compulsion to speak” before he is taken into custody. BIO 12. In advancing that
argument, the State focuses entirely on the kind of physical and psychological compulsion that prompted this Court, in Miranda v. Arizona, 384 U.S. 436 (1966), to require warnings before police conduct custodial interrogations. BIO 13.

But as petitioner has already explained (Pet. 14-17), the physical and psychological coercion present during custody is not the only form of compulsion that the Fifth Amendment recognizes. In Griffin v. California, 380 U.S. 609 (1965), this Court held that a person is compelled to be a witness against himself if the prosecution is allowed to use his silence at trial as substantive evidence against him. Id. at 614; see also Lakeside v. Oregon, 435 U.S. 333, 339 (1978)

(“[U]nconstitutional compulsion [i]s inherent in a
trial where prosecutor and judge [are] free to ask the
jury to draw adverse inferences from a defendant’s
failure to take the witness stand.”). This form of
compulsion has nothing to do with physical or
psychological coercion during custody. Many
nontestifying defendants are not in custody at the
time of trial. And in Miranda itself, this Court made
clear that even after officers have given the required
warnings to suspects in custody – that is, even after
the potential for physical and psychological coercion
has been dispelled – “[t]he prosecution may not . . .
use at trial the fact that [the defendant] stood mute
or claimed his privilege in the face of accusation.”
384 U.S. at 468 n.37 (citing Griffin); see also NACDL
Amicus Br. 4-7 (elaborating on this form of
compulsion and explaining why it is present in this case).

The State offers no reason why Griffin-style compulsion is not present here. Instead, the State argues that Justice Stevens’ concurrence in Jenkins v. Anderson, 447 U.S. 231 (1980), “rejected the argument that the Fifth Amendment was implicated by the admission of pre-arrest silence.” BIO 12-13.

But Justice Stevens limited his observation to a
person’s silence “before he has any contact with the
police.” Jenkins, 447 U.S. at 243; see also Pet. 19.
Once the police begin questioning someone, the Fifth
Amendment’s central aim of avoiding an inquisitorial
system is squarely implicated. See, e.g., Marchetti v.
United States, 390 U.S. 39, 60 (1968) (Fifth
Amendment applies to governmental request to
provide information in noncustodial setting); Malloy
v. Hogan, 378 U.S. 1, 3, 14 (1964) (same); Watkins v.
United States, 354 U.S. 178, 188, 196 (1957) (same).

Finally, the State argues that it would make no sense to allow the prosecution to introduce a defendant’s pre-arrest statements in its case-in-chief but to preclude introduction of his silence. BIO 14-15. But in fact it makes eminent sense. When a person voluntarily responds to law enforcement questioning, he relinquishes his Fifth Amendment
right to remain silent. See, e.g., Jenkins, 447 U.S. at
238; Raffel v. United States, 271 U.S. 494, 498 (1926).
By contrast, when a person declines to speak, he
exercises his right to remain silent and maintains his
ability to invoke it at trial. See, e.g., Marchetti, 390
U.S. at 50-51.

2. None of the State’s three vehicle arguments
withstands scrutiny.

a. At trial, one of the officers who interviewed
petitioner explained that petitioner “did not answer”
his question whether the shells found at the victims’
apartment would match the shotgun petitioner had
given the officers. Pet. App. 11a. At closing, the
prosecution stressed three times that petitioner
“wouldn’t answer that question.” Id. 18a-19a. And
on appeal, the State maintained that it was
permissible to use petitioner’s “silence” as
substantive evidence of guilt. State’s Br. in Tex. Ct.
Crim. App. 3, available at 2012 WL 244956. The
Texas Court of Appeals and Court of Criminal
Appeals agreed, holding that the Fifth Amendment
permitted the State to rely and comment on
petitioner’s “failure to answer the question” and his
“silence.” Pet. App. 6a, 23a.

The State now asserts for the first time that
“petitioner was not silent” after all. BIO 16.
Specifically, the State contends that “petitioner
answered the question” about the shotgun shells “by
his nonverbal conduct.” Id.

This is nonsense. While some nonverbal conduct,
such as a shake of the head, can answer an inquiry,
see, e.g., Schmerber v. California, 384 U.S. 757, 761
n.5 (1966), the State cites no authority for its
suggestion that the mere manner in which someone
remains silent can be so communicative as to
somehow answer a question. Nor does any such
authority exist. Courts unanimously have held –
consistent with common sense – that simply
describing “what a defendant looked like in
remaining silent” is “tantamount to [introducing]
evidence of silence.” United States v. Velarde-Gomez,
269 F.3d 1023, 1028, 1032 (9th Cir. 2001); accord
United States v. Elkins, 774 F.2d 530, 537 (1st Cir.
1985); State v. Easter, 922 P.2d 1285, 1287, 1292
(Wash. 1996). This is especially so when, as here, the
State contended at trial that the defendant “wouldn’t
answer th[e] question” at issue. Pet. App. 18a-19a.
The State thus cannot evade the constitutional
question raised by its use of petitioner’s silence by a
“post-hoc [re]characterization” of its evidence and
arguments. Velarde-Gomez, 269 F.3d at 1032.

b. The State next argues that petitioner cannot
rely now on the Fifth Amendment because he “did not
invoke” the privilege during his interview. BIO 17.
But this argument confuses cases involving the
admissibility of pre-trial statements with those
involving pre-trial silence. When a defendant argues
that pre-trial statements he made should be excluded
because they were obtained in violation of the Fifth
Amendment, he must show that he actually invoked
his right to remain silent before making the
statements, thus rendering the statements effectively
involuntary. See, e.g., Berghuis v. Thompkins, 130 S.
Ct. 2250, 2260-61 (2010); United States v. Kordel,
397 U.S. 1, 7-10 (1970).

But petitioner does not seek to exclude any
statements he made. Instead, he contends that the
prosecution violated the Fifth Amendment by relying
and commenting at trial on his silence. No previous
formal invocation is necessary to make such an
argument, for pre-trial silence constitutes an
expression of the privilege, not an arguable waiver of
it. See Marchetti, 390 U.S. at 50-51. Accordingly,
this Court has made clear that a person who “stood
mute or claimed his privilege in the face of
accusation” during a pre-trial but post-arrest
interview may rely on Griffin to preclude the
prosecution from using that silence against him at
trial. Miranda, 384 U.S. at 468 n.37 (emphasis
added).

Lower courts have reached the same conclusion
with respect to pre-arrest interviews. See United
States v. Burson, 952 F.2d 1196, 1200 (10th Cir.
1991) (it sufficed for Griffin claim that defendant’s
“silence was exhibited” during the pre-custodial
interview); Baumia, ___ S.W.3d ___, 2012 WL
5877581, at *5 n.10 (“[T]here is no difference [under
Griffin] between the introduction of a criminal
defendant’s invocation of her right to remain silent
and her silence itself.”); Easter, 922 P.2d at 1287;
State v. Rowland, 452 N.W.2d 758, 761 (Neb. 1990).
The State cites no authority to the contrary, and no
basis for any exists.

c. The State never argued in the Texas Court of
Appeals or the Court of Criminal Appeals that any
Fifth Amendment error here could be harmless. Nor
did either appellate court below suggest such a
possibility. The State now contends, however, that
any erroneous reliance on petitioner’s silence was
harmless because “there was overwhelming evidence
of petitioner’s guilt.” BIO 18. This contention is hard
to take seriously. The State’s star witness initially
failed to implicate petitioner in the killings. He
changed his story and claimed that petitioner
confessed to him only “after a dream” in which he
was supposedly visited by the victims. Pet. App. 13a.
And petitioner vigorously challenged the only
physical evidence that arguably supported this 7
dream-induced testimony – the State’s ballistics
report. Pet. 4.

But this Court need not make guesses about the
strength of the State’s case. The State presented all
of the same evidence it references now – with the sole
exception of any significant reliance on petitioner’s
silence during his pre-arrest interview – at an initial
trial, and the jury hung. See Pet. 2-3. Only after the
State, at the second trial, made a passionate
argument based on petitioner’s pre-arrest silence –
arguing that an “innocent person” would have
answered the officer’s question – did it obtain a
conviction. Id. at 4-5, 14; Pet App. 18a-19a. When
the sole difference between a trial that proved
inconclusive and one in which the prosecution
obtained a conviction is the evidence at issue, it
almost automatically follows that the improper
admission of that evidence could not have been
harmless. See, e.g., Zappulla v. New York, 391 F.3d
462, 472-73 (2d Cir. 2004); Moreno v. Borg, 1990 WL
212649, at *3 (9th Cir. 1990); Brown v. Dugger, 831
F.2d 1547, 1558 (11th Cir. 1987) (Clark, J.,
concurring).

Consequently, far from constituting a deficient
vehicle, this case frames the question presented in
stark relief. This case accordingly presents the
perfect opportunity to resolve the split of authority
over the issue. This Court should do so now and
deliver the certainty that both the prosecution and
criminal defense communities have told this Court
that they want and need. See Pet. 11-12 (discussing
previous amicus brief from a group of states); NACDL
Amicus Br. 3-4

What difference does it make what the supreme court decides. They will always get it wrong because they have been compromised. They are no longer a body of law. They are a political branch of the government. They deserve not the slightest respect from any true patriot.

Good points. Thanks for clarifying. “Freedom of conscience for me, but not for thee.”?

Nevertheless, compelled testimony against oneself was common and it would seem this is a first step backwards toward that practice.

So...answer whatever questions they ask with non-commital sentences like, "I just can't seem to recall."

Until a suspect is Mirandized, any info he gives is not generally admissible in a court of law. Any halfway decent attorney can get "fruits of the poison tree" dismissed in court.

Well, I knew all that, of course, but thanks for reminding me. And, naturally, I look at the story of Job with a Christian understanding.

But was I being facetious? I don't know. I seriously think that a lot of lawyers worship Satan, in their hearts, not necessarily in cultic activity.

But then that can be said of all sorts of people. Lawyers just seem to be able to do more damage to society than most other professions.

This is an issue even the low-information morons can figure out

No,thay can't.

I don’t think the right to remain silent necessarily implies that one’s silence cannot be used against him. The basis for the right to remain silent is protection against forcing one to testify against himself. Keeping silent protects that right. That is all that is required.

From the article: “Texas opposed the appeal, saying that the protection against compulsory self-incrimination is irrelevant when a suspect is under no compulsion to speak...”

Seems to me that if silence can be used against you in court, then you are under compulsion to speak.

One would hope that what the court rules.

You have the absolute right to testify in favor of yourself and to explain why you are innocent. Failing to do that reasonably suggests guilt.