by
Joe Wolverton, II, J.D.
The Supreme Court handed down a decision on June 17 that has been
ignored by most media outlets, despite its devastating effect on one of
the most fundamental rights protected by the Constitution.
In a 5-4 ruling, the justices ruled that a person no longer has the
right to remain silent as guaranteed by the Fifth Amendment. In relevant
part,
the Fifth Amendment mandates that no one “shall be compelled in any criminal case to be a witness against himself.”
Thanks to
the Supreme Court’s decision in Salinas v. Texas,
that part of the Bill of Rights has been excised — and has joined the
list of so many other fundamental liberties that now lie on the scrap
heap of history.
Here’s a little
background of the circumstances of the Salinas case, as told by Slate:
Two brothers were shot at home in
Houston. There were no witnesses — only shotgun shell casings left at
the scene. Genovevo Salinas had been at a party at that house the night
before the shooting, and police invited him down to the station, where
they talked for an hour. They did not arrest him or read him his Miranda
warnings. Salinas agreed to give the police his shotgun for testing.
Then the cops asked whether the gun would match the shells from the
scene of the murder. According to the police, Salinas stopped talking,
shuffled his feet, bit his lip, and started to tighten up.
At trial, Salinas did not testify, but
prosecutors described his reportedly uncomfortable reaction to the
question about his shotgun. Salinas argued this violated his Fifth
Amendment rights: He had remained silent, and the Supreme Court had
previously made clear that prosecutors can’t bring up a defendant’s
refusal to answer the state’s questions. This time around, however,
Justice Samuel Alito blithely responded that Salinas was “free to leave”
and did not assert his right to remain silent. He was silent. But
somehow, without a lawyer, and without being told his rights, he should
have affirmatively “invoked” his right to not answer questions. Two
other justices signed on to Alito’s opinion. Justice Clarence Thomas and
Justice Antonin Scalia joined the judgment, but for a different reason;
they think Salinas had no rights at all to invoke before his arrest (
they also object to Miranda itself). The upshot is another terrible Roberts Court ruling on confessions. In 2010 the court held that a suspect
did not sufficiently invoke the right to remain silent when he stubbornly refused to talk, after receiving his Miranda warnings, during two hours of questioning.
Consider the ripple effect of the Salinas decision. Specifically,
imagine how this ruling will alter the entire landscape of rights —
including
Miranda — and how they are applied (or not applied) to those accused of serious crimes. Here’s one
potential application singled out by the
Atlantic:
You know what's a much more recent
wrinkle to the potential precedent effect of today's ruling? A case like
that of the younger Boston Marathon suspect, Dzhokhar Tsarnaev,
who reportedly sat through 16 hours of questioning
before he was read his Miranda rights. Had
Tsarnaev, who was recovering from serious injuries at the time,
remained silent during questioning without explicitly invoking his Fifth
Amendment, prosecutors could, under the Salinas ruling, now use that
silence to their advantage.
Guilty or not, suspects in the United States no longer have the right
to remain silent. If they remain silent, moreover, that silence will
now be interpreted as guilt and will indeed — despite what you see on
television court and cop dramas — be used against that person in a court
of law. Even, in fact, the highest court in the land.
Another terrifying twist to the
Salinas decision is that it
imposes on a suspect the necessity of invoking specific language before
law enforcement will honor the basic civil liberties of a person who is
(or historically, was) innocent until proven guilty.
Justice Breyer recognized how this novel necessity places a nearly
insuperable barrier to invoking one’s right to remain silent. Writing
for the dissent, Justice Breyer asked, “How can an individual who is not
a lawyer know that these particular words [“I expressly invoke the
privilege against self incrimination”] are legally magic?”
Breyer goes on to propose a “far better” way to protect a person’s right to not incriminate himself.
Can one fairly infer from an individual’s
silence and surrounding circumstances an exercise of the Fifth
Amendment’s privilege? The need for simplicity, the constitutional
importance of applying the Fifth Amendment to those who seek its
protections, and this Court’s case law all suggest that this is the
right question to ask here. And the answer to that question in the
circumstances of today’s case is clearly: yes.
In the black-is-white-up-is-down world that we live in, it is no
longer surprising to see constitutionally protected liberties being
championed by the “liberal” bloc of justices, while the so-called
“conservatives” chisel away at the bedrock of freedom.
Our Founding Fathers understood how vital the right against self-incrimination was to the pursuit of justice. Consider
the following defense of that right offered by imminent Founding Era jurist Joseph Story:
This also is but an affirmance of a
common law privilege. But it is of inestimable value. It is well known,
that in some countries, not only are criminals compelled to give
evidence against themselves, but are subjected to the rack or torture in
order to procure a confession of guilt. And what is worse, it has been
(as if in mockery or scorn) attempted to excuse, or justify it, upon the
score of mercy and humanity to the accused. It has been contrived, (it
is pretended,) that innocence should manifest itself by a stout
resistance, or guilt by a plain confession; as if a man's innocence were
to be tried by the hardness of his constitution, and his guilt by the
sensibility of his nerves. Cicero, many ages ago, though he lived in a
state, wherein it was usual to put slaves to the torture, in order to
furnish evidence, has denounced the absurdity and wickedness of the
measure in terms of glowing eloquence, as striking, as they are brief.
They are conceived in the spirit of Tacitus, and breathe all his
pregnant and indignant sarcasm. Ulpian, also, at a still later period in
Roman jurisprudence, stamped the practice with severe reproof.
In one day the Supreme Court of the United States now dispenses with a right defended by Cicero over 2,000 years ago.
Finally, read the
warning issued by Abraham Holmes during the Massachusetts ratifying convention in January 1788:
There is nothing to prevent Congress from
passing laws which shall compel a man, who is accused or suspected of a
crime, to furnish evidence against himself, and even from establishing
laws which shall order the court to take the charge exhibited against a
man for truth, unless he can furnish evidence of his innocence.
I do not pretend to say Congress will do
this; but, sir, I undertake to say that Congress (according to the
powers proposed to be given them by the Constitution) may do it; and if
they do not, it will be owing entirely — I repeat it, it will be owing
entirely — to the goodness of the men, and not in the least degree owing
to the goodness of the Constitution.
In the
Salinas case, it was as Holmes wisely predicted: The
goodness of the Constitution was not enough to protect one of our most
fundamental and cherished liberties from the assault by an almost
all-powerful federal government.
Illinois Senator Dick Durbin says the
bill has American workers covered. "Employers will be given a chance to
hire a temporary foreign worker when truly needed. But first, they'll be
required to recruit Americans. No exceptions, no excuses," he said.
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