Sunday, July 7, 2013

Guest column: Right to remain silent? Not under this court

Matthew T. Mangino
Delaware County Daily Times
July 2, 2013

The U.S. Supreme Court recently ruled that the right to remain silent — that iconic right of television and movie fame — is really not as straightforward as one might think.

In fact, the U.S. Supreme Court made it clear that a suspect cannot invoke the right to remain silent by … well ... remaining silent.

The case, Salinas v. Texas, arose from the 1992 murder of two men in Houston. The police found shotguns shells discarded at the crime scene.

The police questioned Genovevo Salinas, who was said to have attended a party at the victims’ apartment. When Salinas met with police he was not under arrest. He voluntarily submitted to questioning and was free to leave the police station at any time.

He answered questions for almost an hour but when asked by police if the shotgun shells found at the murder scene would match a shotgun found in Salinas’ home, he stopped talking.

The police made a record of Salinas’ conduct once he stopped talking. According to the Supreme Court opinion authored by Justice Samuel A. Alito, Jr., Salinas “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.”

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court agreed, finding that silence is not enough to invoke the right to remain silent. In an ironic twist a suspect must break his silence to benefit by his silence.

In 1965, the Supreme Court said it was not necessary to actually invoke the right to remain silent at trial. A criminal defendant need not take the stand and assert her Fifth Amendment right. That exception reflects the fact that a criminal defendant has an “absolute right not to testify.”

In the famous case of Miranda v. Arizona the Supreme Court held that a suspect who is in police custody, is under arrest, or at a minimum not free to leave, is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation and need not invoke the Fifth Amendment.

When Salinas was argued, his attorney suggested that it would be unfair to require a suspect untrained in the law to do anything more than remain silent in order to invoke his “right to remain silent.”

The Supreme Court has made the right to remain silent more complicated, and it will require those accused of a crime to be more informed about their rights and, more importantly, the decision will require an accused, under enormous pressure, to articulate the desire to invoke those rights.

The court admonished, “The Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself;’ it does not establish an unqualified ‘right to remain silent.’”

The old cliché — ignorance of the law is no excuse — has never been more apropos. The court made it clear, “[I]t is settled that forfeiture of the privilege against self-incrimination need not be knowing.” In other words, an informed or intelligent waiver of the right to silence is not required. Ignorance is quite enough to open the door to having a suspect’s silence used against him.

Anyone, guilty or innocent, invited to the police station to talk about a murder is going to be nervous. The Supreme Court has now entrusted to the police the responsibility to make an unbiased interpretation of a suspect’s physical manifestations.

A failure to make eye contact, an awkward shift in one’s seat, a bead of sweat can result in a suspect, who has admitted nothing, being convicted.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney for Lawrence County, Pa. You can read his blog every day at and follow him on twitter @MatthewTMangino.

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