Last week, the California Supreme Court decided—in another blow to Miranda v. Arizona—that evidence of a suspect’s post-arrest, pre-Miranda silence could be introduced by the prosecutor.
A typical Miranda situation involves a suspect who’s been arrested, read the Miranda statement, and then subjected to questioning. Per Miranda, if the suspect invokes his right to remain silent—it can be a simple as saying, “I’m not talking to you”— then all questioning has to cease. But what if the suspect says nothing? He’s remaining silent, to be sure, but is invoking his right to remain silent?
The U.S. Supreme Court addressed that scenario a year ago in Salinas v. Texas. In a fractured 5-4 opinion, the Court said that a Mirandized suspect who wished to actually invoke his right to remain silent needed to more than just remain silent. While the Court didn’t elaborate on what, exactly, a suspect had to do, it was enough to say that “simply standing mute” didn’t effectively invoke the right.
Because a suspect who invokes the right to remain silent is exercising a constitutional right, the Court has also said in earlier cases that he can’t be penalizing for legitimately exercising that right. Consequently, prosecutors can’t introduce evidence that the suspect invoked his right to remain silent. It would be the same as the prosecutor telling the jury that innocent people talk to the police and guilty people clam up—a statement that’s also not allowed.
The reading of the Miranda warning serves as a signpost to both police and the suspect. To the suspect, it says, “If you say anything from this point forward, then we’re entitled to use it against you at trial.” Equally importantly, to the police, it says, “Anything the suspect may have said before this point might not be admissible at trial.”
Tom, though, is about a different scenario. No one disputed that Tom was “arrested”; he certainly wasn’t free to leave the scene of the accident. But he hadn’t been Mirandized yet, either. Suspects don’t have to be “read their rights” at the time of arrest. They just have to be advised of their rights to counsel and to remain silent before they’re subjected to custodial interrogation. Reading suspects their rights at the time of arrest just makes sense in terms of that signpost: police can and do talk to suspects in the car after they’ve been arrested, so waiting until they get to the police station to conduct a formal interrogation could be counterproductive.
So what, asked Justice Liu in his dissent, is a suspect to do? “Tom’s foremost concern naturally would have been to avoid incriminating himself,” so naturally he would say nothing. Except that “nothing” could also be incriminating. Justice Liu illustrated the absurdity that the majority’s rule would create in practice:
As Tom sat in the back seat of the patrol car, he was not being questioned by the police. To whom and how should he have invoked the Fifth Amendment privilege? Was he required to approach an officer on his own initiative and blurt out, “I don‘t want to talk”? Would it have been enough for Tom to say just that, without mentioning the Fifth Amendment or otherwise indicating he didn‘t want to incriminate himself? And if so, how would that have been materially different from simply remaining silent? Moreover, why should it matter whether Tom invoked the privilege to a police officer? What purpose would that have served, since no police officer was trying to question him?
Why would a person affirmatively invoke his right to remain silent even though no one was asking him any questions? Clearly, if the court is going to permit the introduction of pre-Miranda silence, it must also be prepared to forbid the introduction of a pre-Miranda Fifth Amendment invocation; otherwise, a suspect is never safe.
But it’s not so clear. Orin Kerr wrote about Salinas and its impact on pre-arrest questioning back in 2013. In discussing the history of Miranda, he noted that prior to Miranda, the Fifth Amendment could only be invoked in a situation where a suspect’s failure to answer a question would subject him to punishment. In this uncharted area of law—when a defendant can invoke his right to remain silent prior to being Mirandized—that same logic could certainly apply to Tom: a court could conclude that the policy considerations guiding a Miranda situation (coercion combined with the threat of punishment) don’t weigh in favor of letting a suspect invoke his right to remain silent. As a result, he has no legitimate ability to invoke the right, meaning he can do nothing, post-arrest, pre-Miranda, to stop the government from using anything he says against him.