Thursday, July 25, 2013

(Part 2: Right to Silence) Supreme Court: Right on DNA Swab and on Silence

Finally Part 2. Since Part 1 was posted a month ago--discussing the Supreme Court's 5-4 ruling allowing warrantless DNA swabs of arrestees charged with violent crimes--we have turned our attention to the decisions on affirmative action, voting rights, and same-sex marriage, as well as the verdict in the George Zimmerman trial. Now let's get to Part 2: the Court's ruling on using a suspect's silence against him.
A few preliminaries.
It was another 5-4 ruling.
Actually, the vote was 3+2 vs 4.
On one side it was Chief Justice Roberts and Justices Alito and Kennedy, plus Justices Scalia and Thomas.
On the other, it was Justices Ginsburg, Breyer, Sotomayor, and Kagan.
Yes, 3+2 vs 4 on whether a suspect's "right to silence" was violated.

The conservative Republicans versus the liberal Democrats.
So you can take a good guess who sided with the prosecution, and who with the accused.
Who said it was okay to use a suspect's silence against him, and who said it was unfair.
And since the conservative Republicans were in the majority, you know that the prosecution won and the suspect lost in this case.

That surely doesn't mean that their decision was wrong--or that it was right.
It just means that the Justices were divided in this case as they typically are in ideologically charged cases.
Typically, all or most of the Republicans versus all or most of the Democrats.
Same for conservatives versus liberals.
Ideology versus ideology.
Party versus party.

We've discussed this before.
It's just not a very good court.

Yes, sometimes a Justice from one camp jumps to the other.
And yes, Kennedy is the swing-vote who sometimes leaves the conservatives and gives the liberals a majority.
But typically how do they vote?
In the cases that we and they actually care about, feel strongly about?

Typically the votes break as expected in cases rife with ideological passion.
Much too much voting along strictly ideological lines.
Even worse. Along partisan lines.
[See e.g., Part 12: [yes, still] A Court of Shameless Partisans. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!, 7/7/2012; and the preceding parts of that series.]

So what about this particular case, Salinas v. Texas ?
This was a "right to silence" case.
It involved a double murder--in Texas--police questioning--of a suspect--at the police station--in the interrogation room--without a lawyer--without MIRANDA warnings--then a trial--the defendant didn't testify--then a guilty verdict--and a 20 year sentence.

The rub?
During police questioning at the station-house--when the defendant was only a suspect and not under arrest--he suddenly went mum. When asked a question about the murder weapon, he became silent, looked down, bit his lip, clenched his hands, and otherwise behaved very nervously. He then continued to answer other questions.
During the trial, the prosecution presented evidence informing the jury about the defendant's sudden silence, and about his nervous reactions to the potentially incriminating question.

So did informing the jury violate the defendant's constitutional "right to silence?"
This issue is pure law and order versus protecting rights of criminal suspects.
Crime control versus due process.
[Classic Herbert Packer's 2 models of criminal justice.]

The Supreme Court--i.e., the 5-Justice conservative Republican majority--sided, as expected, with law and order, with crime control, with evidence that the suspect suddenly clammed up.
And against the "right to silence," which they have long viewed as dubious.
[Disclosure: Me too. Which is why I think they got this one right.]

Legally, constitutionally, here's why this is an issue (and why I've been putting "right to silence" in quotes).

The Constitution--specifically, the 5th Amendment--provides that "no person...shall be compelled in any criminal case to be a witness against himself." In shorthand: the privilege against compulsory self-incrimination.

It's not a right against self-incrimination. It's not even a "right to silence" per se. It's a right against being "compelled," forced, coerced into incriminating oneself.

So, the right prohibits involuntary confessions--that are then used in a criminal case against the defendant. It prohibits beating a confession out of someone or using any other violence to obtain a confession, and then using that confession to prosecute the person. That is what the 5th Amendment explicitly provides.

The historical purposes underlying the 5th Amendment privilege are pretty clear. One was to prevent inhumane treatment in obtaining confessions. Another was to prevent fishing expeditions--i.e., where the government wrenches a confession out of someone who it had no justification to be interrogating in the first place. These were the abuses the Framers were guarding against.
(Anyone interested in the policies reflected in the 5th Amendment privilege should read David M.  O'Brien, Fifth Amendment: Fox Hunters, Old Women, Hermits, and the Burger Court, Notre Dame L. Rev. [1978-1979]; also, my own less worthy effort: An Alternative to the Constitutional Privilege Against Self-Incrimination, Brooklyn L. Rev. [1982]; and, if really serious, Leonard Levy's definitive ORIGINS OF THE FIFTH AMENDMENT [1968].)

But that's hardly the end of the story.

In 1964, in Malloy v. Hogan, the Supreme Court overruled a string of its own precedents and held that the 5th Amendment privilege is a fundamental right. Consequently, the states (as well as the federal government) were thereafter constitutionally bound to protect it.
The very next year, in Griffin v. California, the Court held that the self-incrimination right was violated whenever a prosecutor comments to a jury about the defendant's failure to testify in his own behalf. The Court thought that such comments unfairly penalize a defendant who exercises his 5th Amendment right at trial.
Then, in 1966, the Supreme Court responded to systemic violations of the 5th Amendment outside the trial courtroom. In Miranda v. Arizona, the Court mandated warnings to be given to any suspect who is taken into police custody and subjected to interrogation. Included is the warning: "You have the right to remain silent. Anything you say any and will be used against you in a court of law." Among other things, the Court explained that it viewed interrogation in custody to be inherently coercive.

Now, with all that in mind, let's recall the facts of this case, Salinas v. Texas.

The defendant was not compelled to incriminate himself. There was nothing involuntary about any of the questioning or any of the defendant's responses.
The defendant was not in custody. He had not been arrested, he agreed to go to the station and be questioned, and throughout the questioning he was free to answer or not and the police didn't suggest otherwise.
At trial, the defendant did not take the stand and the prosecution said nothing about that.

So, no actual compulsion, no inherent compulsion of a custodial interrogation, and no comment at trial about the failure to testify.

No. Only information about the entirely voluntary question and answer session, specifically including the defendant's sudden silence when asked about the murder weapon.

A violation of the 5th Amendment right against compelled self-incrimination?
A violation of the Miranda warnings, or of the Miranda right to remain silence itself, which applies to custodial interrogations?
A violation of Griffin's rule against comment on exercising the right not to testify?
No, none of that.

Only evidence presented to the jury about the defendant's reaction, including sudden silence, in response to a particular question.

A violation of the 5th Amendment itself?
Or even the "right to silence?"
Clearly not the first. That's not even a close one.
And not the second either. Unless the "right to silence" is to be extended outside the courtroom, and outside custodial interrogation, and even when the defendant has neither invoked the 5th Amendment nor the silence right, and even to the jury being informed about a voluntary question and answer session.

That's really a stretch.
More importantly, it's not at all clear what such an extension of the "right to silence" would be protecting?
What abuse is involved?
What fundamental liberty or liberty interest is really at stake?
What is the injustice being prevented?

Sorry, I don't see it.
I'm with the conservative Justices on this one.
I think the Court got it right in holding that no constitutional right was violated in this case.

(N.B., this case--the Court's decision--was not about rules of evidence that would address any questions regarding the relevance and probative value of the information about the defendant's silence. Issues about the pertinence or ambiguity or meaningfulness of such information are questions for evidence law. This case--the Court's decision--was strictly about a constitutionally protected right and whether that right was violated.)

BTW, here are the reasons the Justices gave for how they voted.
Alito, in an opinion joined by Roberts and Kennedy, emphasized that the defendant here had never invoked any right during the non-custodial questioning. That's to be contrasted with a defendant's decision not to take the stand, or a suspect's decision to remain silent in custodial questioning.
Thomas, in an opinion joined by Scalia, argued that the Griffin decision is wrong--i.e., that commenting on a defendant's silence does not compel self-incrimination, period.
Breyer, in a dissenting opinion joined by Ginsburg, Sotomayor, and Kagan, argued that allowing a prosecutor to comment on a defendant's silence--whether silence at trial or during investigative questioning--improperly forces the defendant to choose between his 5th Amendment right and avoiding the negative implication of such comment.

In short:
Conservative Roberts, Kennedy, and Alito were against extending the Griffin "right to silence" rule.
Very conservative Scalia and Thomas were against Griffin, period.
Liberal Ginsburg, Breyer, Sotomayor, and Kagan were for preserving Griffin and extending its underlying concern to all out-of-court questioning.

Yep, 3+2 vs. 4.
Conservative Republicans + Very Conservative Republicans versus All Liberal Democrats.

And so it goes at today's Supreme Court.