At the Supreme Court, Divisions and Signs of Trouble to Come

Two new rules for criminal cases, and a discussion -- in code -- about Roe v. Wade
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The United States Supreme Court decided two criminal law cases Monday morning that have very little in common, except that they both further define the contours of what jurors get to hear during the course of a criminal trial. In both cases, on issues of guilt and innocence and sentencing, the justices decided that jurors could be trusted to hear more, not less, about the evidence presented to them by lawyers and witnesses. You can decide for yourself whether these are good developments or bad ones. Whatever they are, and whatever they mean, they surely highlighted anew the Court's ideological divide.

In Salinas v. Texas, the justices gave prosecutors a gift by upholding the murder conviction of a man whose silence during questioning was subsequently at trial used to help convince jurors of his guilt. What the decision really means is that to invoke your right to remain silent you have to initially speak up. Meanwhile, in Alleyene v. United States, the justices gave criminal defendants a gift by requiring prosecutors to prove to a jury not just facts that establish guilt but those that help determine a suspect's sentence. What that decision really means is that jurors will have slightly more power than they did before to determine a defendant's fate.

Salinas v. Texas

From the Court's plurality opinion, authored by Justice Samuel Alito, here's what happened:

On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.

Petitioner's interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. For most of the interview, petitioner answered the officer's questions. But when asked whether his shotgun "would match the shells recovered at the scene of the murder," petitioner declined to answer. Instead, petitioner "[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." After a few moments of silence, the officer asked additional questions, which petitioner answered [citations omitted by me].

At trial, over the defense attorney's objection, prosecutors used Salinas' silence during this interview against him. He was promptly convicted. For the Court's majority, the matter was relatively simple. "We have before us no allegation that petitioner's failure to assert" his privilege against self-incrimination "was involuntary," Justice Alito wrote, "and it would have been a simple matter for him to say that he was not answering the officer's question on Fifth Amendment grounds. Because he failed to do so, the prosecution's use of his noncustodial silence did not violate the Fifth Amendment."

You may decide for yourself how "simple" it might be for a murder suspect in Texas named Genevevo Salinas to pipe up and volunteer in the face of a police interrogation that he wanted to exercise his constitutional rights. But to Justices Clarence Thomas and Antonin Scalia, the case was even more simple than Justice Alito made it out to be. In a concurring opinion, they declared that Salinas would have been out of luck even if he had invoked his Fifth Amendment privilege to remain silent, because the "adverse inference" employed by prosecutors does not trigger a defendant's obligation to testify against himself.

While the Court's five conservatives differed on how to deprive Salinas of his constitutional rights, the Court's four liberal justices spoke with one voice. To Justice Stephen Breyer, the exchange between Salinas and the police was not a friendly chat. "The context was that of a criminal investigation," he wrote. "Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question -- about whether the shotgun from Salinas' home would incriminate him -- amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder."

In these circumstances, the dissenters concluded, it was manifestly unconstitutional to allow prosecutors at trial to inform jurors that Salinas has failed or refused to answer that single question. Justice Breyer wrote:

To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances -- even if he is innocent. If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt.

And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as "a witness against himself " -- very much what the Fifth Amendment forbids.

Good news for jurors. Bad news for defendants. The lesson of Salinas is clear, and tracks a trend from this Court. Attributed to criminal suspects is a level of constitutional awareness few of them have. To conclude it was reasonable for Salinas to have stopped the interrogation, and explicitly invoke his Fifth Amendment rights under Miranda v. Arizona, is a fantasy in which the justices, conveniently, indulge. The real world, the world in which the police and suspects are at odds, cries out for clear judicial standards that presume the opposite -- that the Constitution works best when it protects those who need it most.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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