You have the right to have your silence used against you

It's not an unusual occurrence for a potential client charged with driving while intoxicated to tell me during the initial interview to tell me that the police never read him his rights. It is then up to me to tell him that there was no need for the police to remind him of his right to remain silent because they weren't interested in asking him any questions once they arrested him.

The touchstone for the Fifth Amendment has long been custodial interrogation. If the police want to talk to you about what they think you did after arresting you, they have to read you your rights. If you're not under arrest, then all's fair. This distinction has led to much genuflection and tortured language as the courts attempt to explain how a suspect, handcuffed in the backseat of a police car, is not considered to be in custody.

Forget all about that quaint notion of being free to leave. I'm not certain how many folks cuffed and sitting in the backseat of a car without the ability to open the door can be considered being anything other than in custody.

And this is the context in which Mr. Genevevo Salinas of Texas found himself. It seems there was a party one night in Houston which Mr. Salinas attended. Sometime during the night, the hosts of the party found themselves on the wrong end of a shotgun. The investigation led the police to Mr. Salinas.

Mr. Salinas decided to accompany the police to the station for an interview. Over the course of an hour he freely spoke with detectives about his knowledge of the two dead individuals and the party. During the interveiw, Mr. Salinas told the police he had a shotgun. One question led to another and the police asked Mr. Salinas if his shotgun would match the shells found at the scene.

Mr. Salinas then decided that the best thing he could do was keep his mouth shut.Mr. Salinas was then taken into custody on traffic warrants as the police didn't have enough evidence to charge him with murder. That changed when a witness came forward and told police that Mr. Salinas had confessed to him. Mr. Salinas was then arrested for the murders. At trial the police testified that he answered their questions up until they asked him about his shotgun. The jury, not surprisingly, found Mr. Salinas guilty.

The 5th Amendment states that no person "should be compelled in any criminal case to be a witness against himself." The language is quite clear - a person accused of a crime has a right to remain silent and that silence may not be considered as evidence against him at trial. And that is exactly what happened to Mr. Salinas at trial. The fact that he chose not to answer a question (for whatever reason), was presented as evidence of guilt at trial.

In Salinas v. Texas, 570 US ___ (2013), the Supreme Court held, in yet another 5-4 decision, that there was nothing wrong with the prosecution introducing evidence of Mr. Salinas' silence during questioning. The majority opinion even noted that in the Berguis case, the Court held that sitting silent for almost three hours in the face of continuous interrogation didn't constitute an invocation of one's 5th Amendment right to remain silent. Therefore, the majority reasoned, not answering one little question can in no way be inferred as an invocation of the right to keep one's mouth shut.

The absurdity of the decision is obvious. We all have a right not to answer questions from the police. It's called the right to be left alone. We don't have to invoke that right. We exercise it when we choose not to answer any questions. Just because Mr. Salinas was a suspect in a murder case doesn't mean that he somehow loses his 5th Amendment rights unless he's arrested or makes some kind of affirmative statement that he is remaining silent.

The 5th Amendment says nothing about being under arrest or in custodial interrogation. It states simply that one's silence may not be used against him in a criminal trial. Mr. Salinas' silence was used against him. Of course Justice Scalia wrote in his concurring opinion that all the 5th Amendment does is protect a defendant in a criminal case from being called to the stand by the state - in his mind there is no protection from the government asking the jury to infer guilt from a defendant's silence. Okay - except that such an interpretation renders the protection against self-incrimination fairly illusory.

Our criminal (in)justice system requires the government to prove up each and every element of their case beyond all reasonable doubt - it requires nothing of the defendant. The fact that a defendant didn't answer one or more questions posed by the police is irrelevant to the question of whether the state met its burden. Allowing the state to ask a jury to infer guilt from a defendant's silence is tantamount to reducing the state's burden of proof (or placing a burden to disprove on the defense).