Sound of Silence

In human intercourse the tragedy begins, not when there is misunderstanding about words, but when silence is not understood. - Henry David Thoreau

This week, in Salinas v. Texas, the Court will ponder whether the prohibition of being compelled to bear witness against oneself is, under all circumstances, a right to remain silent. Almost half a century ago, frustrated and appalled by years of studies demonstrating police brutality both physically and psychologically, the Court sought, “a protective device to dispel the compelling atmosphere of the interrogation.” Miranda v. AZ, 384 U.S. 436, 465 (1966). In Miranda, the Court explained that if the police propose to interrogate a person, they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him PRIOR TO any interrogation. The fundamental right not to be compelled to be a witness against oneself harkens back to the 1600’s, was instituted in England through popular opinion and societal practice, ultimately led to the demise of the Star Chamber, carried over to the Colonies and is a bulwark of American jurisprudence.

Except when it’s not.

The late Chief Justice Rehnquist referred to the warning requirement in Miranda as a “constitutional rule” rather than a right - the tension in the constriction on the Miranda requirements and waiver of the warning emanates from the notion that it is more important to get confessions than it is to protect individual liberties. Miranda focused on the right to remain silent by safeguarding it with a prophylactic warning of the "right" to the presence of counsel at the interrogation. In Edwards v. AZ, 451 U.S. 477 (1981), the Court lasered in on this right to counsel: “the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked.” Id. at 484. Not only is the right to counsel nowhere in the Fifth Amendment, but the concept of a right existing solely because it is invoked and being essentially waived if it is not invoked is a bizarre mutilation of the very foundational aspect of a "right" in the first place.

We need not “invoke” our right to free speech in order to protect it; we need not “invoke” our right to be safe from excessive bail; we need not "invoke" our right to bear arms. But, we need to “invoke” the right not to incriminate ourselves - and not just invoke - but do so unambiguously. Berghuis v. Thompkins, 130 S.Ct. 2250 (2010). Once the individual invokes the right to remain silent, the authorities MUST cease all questioning.  If the invocation is for the right to the presence of counsel, all questioning must cease until counsel arrives.  And, the invocation itself of either the right to remain silent or the request for a lawyer cannot be used against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). The problem with the "right to remain silent" inherent in Miranda is that it has been couched in this awkward rule that has been diminished over time. The right itself is not to be compelled to bear witness; not an invocation of silence.

It is fairly well accepted that warnings must be provided in custodial settings (although the concept of custodial is fairly narrow). It is equally accepted that most settings are not custodial (even if they are intimidating and exactly the circumstances condemned by Justice Warren in Miranda) and so no warnings are required. From the Court's view, “[v]oluntary confessions are not merely “a proper element in law enforcement,”, they are an unmitigated good,” ‘essential to society's compelling interest in finding, convicting, and punishing those who violate the law.’ Maryland v. Shatzer, 130 S.Ct. 1213 (2010).

But, silence is another story altogether. In Raffel v. United States, 271 U.S. 494 (1926), the defendant was convicted at a trial in which he did not testify; that conviction was reversed and the defendant testified at his retrial. Over objection, the government impeached the defendant with his prior silence as being inconsistent with his testimony. The Court stated, without deciding, that if the defendant had not taken the stand in his second trial, his silence in the first would be of no probative value. But, once he took the stand, he opened himself to all lines of impeachment; "[t]he safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf, and not for those who do."

The Court upheld its reasoning in Raffel in Grunewald v. United States, 393 U.S. 391 (1957), but averred that a defendant who had invoked his Fifth Amendment privilege when called before a Grand Jury should not be cross-examined on that fact because its probative value as to credibility was outweighed by the prejudice of the jury hearing that fact...even though he chose to become a witness in his own behalf. A similar due process analysis governed the case in United States v. Hale, 422 U.S. 171 (1975) where, upon the provision of Miranda warnings, the defendant remained silent and then testified at trial. The Court eloquently explained the vagaries of silence and concluded - in its supervisory authority over an evidentiary issue - that "the probative value of respondent's pretrial silence in this case was outweighed by the prejudicial impact of admitting it into evidence." Id. at 173.

In Doyle v. Ohio, 426 U.S. 610 (1976), the government argued that while silence did not necessarily implicate guilt, it was necessary to give the jury the full picture of the events. The Court disagreed, extending the decision in Hale by alluding to the Miranda warnings and declaring, "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 618. The Court held that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

To keep it straight: the Fifth Amendment prohibits compelled self-incrimination. In an effort to curtail police brutaility and psychological manipulation resulting in lengthy interrogations and questionable confessions, the Court required officers to inform people in custody of this right. But, the right existed prior to Miranda and it exists for all people whether in custody or not. As Justice Marshall (who, as U.S. Solicitor General argued in opposition in Miranda) explained in Hale, silence is ambiguous. Therefore the use of silence to suggest guilt or recent fabrication is a violation due process. Unpacking that - the reason the Fifth Amendment exists is that no one can be compelled to be a witness against himself whether tacitly or vocally. Silence itself is an exercise of that right and, therefore, implying that silence means one thing or another offends the notion of ordered liberty BOTH because the individual need not speak in the face of an accusation AND because a failure to speak is hardly the equivalent of guilt thus use of silence for any purpose is not specifically a violation of the Fifth Amendment's right not to be compelled to be a witness against oneself, but rather because it offends due process of law.

The Miranda decision is utterly flawed - primarily for concocting an imaginary right to counsel under the Fifth Amendment which does not exist and for insulating the right not to be compelled to bear witness within a notion of the right of the presence of counsel without ever saying that the right to counsel under the Sixth Amendment and the independent right to counsel under the Fourteenth Amendment attaches at the time of accusation - but it is unequivocal in its sincerity and its purpose. The decision talked about ALL statements, not just inculpatory ones but also the exculpatory and neutral ones that are constantly turned on their heads when taken out of context and determined that these, too, should be excluded from the jury’s consideration when they are the product of interrogation.

The case was not about silence - it was about coerced confessions. Interestingly, Miranda himself was retried without the use of his confession, reconvicted, received the same sentence minus good time, served 11 more years and was killed by a knife wound shortly after he was released from prison at the age of 34. A suspect was arrested, provided with the Miranda warnings, invoked his right to remain silent, was released from custody, fled the state and the homicide of Ernesto Miranda in 1976 remains unsolved today.

But, part of the reasoning in both Hale and Doyle involves the idea that, having been informed of the right to stay mute (thanks to the requirement of Miranda for all those in custody and not otherwise free to leave), one accused is keenly aware of the right and therefore may heed the caution to remain silent for countless reasons. A case to be argued this week, Salinas v. Texas, asks whether someone not in custody and therefore not warned under Miranda can have his silence used against him at trial.

This stroll down memory lane should heed the obvious answer: the right predated Miranda whether people knew about it or not; silence can equally indicate guilt or innocence or a mind wandering off to remember groceries: it is not indicative of anything. While it is true that no person shall be compelled to be a witness against himself in a criminal case and silence is not bearing witness in a technical sense, the rationale for excluding silence is one of due process of law. Virtually all police questioning is a form of interrogation discussed in Miranda. The litigation post-Miranda concerns essentially whether or not the police were required to provide warnings before hearing a confession, usually with the conclusion that the confession of the guilty is, for lack of a better term, more probative than prejudicial regardless of the warnings.

Conversely, if the government were permitted to cross examine on the defendant's prior silence - whether or not he was in custody and whether or not he had been warned that he had a right to remain silent - in order to ensure that silence was not misconstrued as guilt, it would compel an explanation of that silence which would force the individual to be a witness against himself and that next step - the explanation of the silence more than the ambiguous silence itself - is what offends due process of law. The Court acted in a supervisory role over an evidentiary - not Constitutional - matter in order to prevent an unfair trial when it decided that prior silence cannot be used to infer guilt or recent fabrication.

The Framers intended an accusatory system of criminal jurisprudence where no one accused of a crime would be called to the stand by the government - if a police officer asks a suspect a question and the suspect answers, the officer can testify to that answer as an admission of a party opponent - which is why the officer has to explain that the individual in custody need not speak with him and may have the assistance of counsel prior to any interrogation. The Court concocted a difference between a suspect and an arrestee where only the arrestee must be told of his rights because, in theory, the suspect is free to leave.

If he is free to leave then he is fully at liberty to exercise all of his Constitutional rights, including not bearing witness against himself or simply walking away. If he is not free to leave and exercise all of his rights, then he is in a custodial setting and must be provided with Miranda warnings at which time his invocation of rights cannot be used against him. Either way, fabricating a reason for his silence in the face of a question - or even the comment that he does not want to speak to the police - or that he wants a lawyer present - violates due process of law. And, if only those formally arrested and "entitled" to a recitation of their rights are deemed to be permitted to invoke their rights with impunity, then the suspects who have not been so informed are similarly situated and yet subject to unequal protection of the law, also in violation of the Fourteenth Amendment.

Although well intentioned, Miranda has proven itself to be a disaster. The prior decision, Escobedo v. IL, 378 U.S. 478 (1964) which explained that an “accused” in a “criminal prosecution” is anyone who is the target of the police - when the police focus their investigation on one person and there is no longer a general investigation, but rather an intention to secure a confession through the means of interrogation, that person is the accused. And that person is entitled to counsel. No formal custody, no warnings versus failure to warn. Just a lawyer whose job it is to enforce his due process rights as the guiding hand of counsel as so elegantly phrased in Powell v. AL, 287 U.S. 45 (1932) another case decided squarely and without apology on due process of law.

Had the Court stayed on that path without the Miranda diversion, Salinas would be a simple case to decide; he would have had a lawyer with him for this conversation with the police and, in all likelihood, he would have remained utterly silent in the face of the accusations and the government would bear the burden of proof of guilt beyond a reasonable doubt with fair evidence...just like the Framers intended.