Miranda Rights and the Fifth Amendment

 "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
-U.S. Constitution: Fifth Amendment

Miranda v. Arizona:

In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. As a result of Miranda, anyone in police custody must be told four things before being questioned:

1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to an attorney.
4. If you cannot afford an attorney, one will be appointed for you.

The Court actually consolidated four separate cases regarding the admissibility of evidence obtained during police interrogations:

• Ernesto Miranda was arrested for kidnapping and rape. Mr. Miranda was an immigrant, and although the officers did not notify Mr. Miranda of his rights, he signed a confession after two hours of investigation. The signed statement included a statement that Mr. Miranda was aware of his rights.
• Michael Vignera orally admitted to the robbery to the first officer after the arrest, and was held in detention for eight hours before he made an admission to an assistant district attorney. There was no evidence that he was notified of his Fifth Amendment constitutional rights. 
• Carl Calvin Westove, arrested for two robberies, was questioned over fourteen hours by local police then was handed to FBI agents who took signed confessions from him. The authorities did not notify Mr. Westover of his Fifth Amendment constitutional rights.
• The fourth Defendant, Roy Allen Stewart, was arrested along with members of his family (although there was no evidence of any wrongdoing by his family) for a series of purse snatches. There was no evidence that Mr. Stewart was notified of his rights. After nine interrogations, Mr. Stewart admitted to the crimes.

In the Miranda case the Supreme Court held that the Constitution’s Fifth Amendment prohibition against self-incrimination applied to an individual in police custody or ‘deprived of his freedom of action in any significant way.’ In order to safeguard this right, the Court ruled that prior to being questioned suspects have to be informed of their rights.
A statement obtained without compliance with these rules is inadmissible, as is the fact that a defendant has chosen to exercise the right to remain silent ‘in the face of accusation.’ Although waiver of these rights is possible, the Court emphasized that ‘a heavy burden rests on the government’ to prove that such a waiver has actually taken place.

The Court based its holding on an extensive review of actual police interrogation practices; in addition to outright physical abuse and the ‘third degree,’ the police had frequently obtained confessions through a variety of ploys and subterfuges, many of which were codified in police manuals and texts. The Court found that ‘the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.’ Hailed by civil libertarians as a victory for individual rights, the decision was attacked by conservatives as undermining the efforts of law enforcement officials.

Meanwhile, a series of post-Warren Court decisions have significantly limited the applicability of Miranda while not overruling the case outright. One of the more influential of these has been Salinas v. Texas decided on June 17, 2013.

Salinas v. Texas:

In 1992 Houston, Texas police were investigating the murders of two brothers, Juan and Hector Garza. There were no witnesses: only shotgun shell casings left at the scene. Police determined that Genovevo Salinas had been at a party at the brother's house the night before the shooting. Salinas lived with his parents, and upon visiting the home police received consent to search the premises. Salinas agreed to give the police his shotgun for testing, and voluntarily accompanied the officers to the police station for an interview.

Police did not read Salinas any Miranda warnings, nor were they required to do so, as he was not in custody. For almost an hour, Salinas answered a series of questions that the police posed. At one point, however, police asked him “if the shotgun [he had given them] would match the shells recovered at the scene of the murder.” At that point Salinas "stopped talking, shuffled his feet, bit his lip, and said nothing".
Lacking probable cause to arrest Salinas for murder, he was released.

The police subsequently received a ballistics report that did identify a match between the casings from the murder scene and the shotgun from Salinas’s house, and the State charged him with two counts of murder. However, the police were unable to locate Salinas for fifteen years. He was finally arrested on an entirely unrelated traffic warrant, at which time he was taken to trial for the murders. The first trial ended in a mistrial, and a second prosecution began.

In closing argument during Salinas’s second trial, the prosecution emphasized the fact that Salinas had remained silent when police asked whether the shotgun from his home would match the shells recovered from the murder scene. The government said the following to the jury:

“The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody -there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that.. He didn’t respond that way. He wouldn’t answer that question.”
At the end of the second trial the jury came back with a guilty verdict, and Salinas appealed claiming that the prosecution’s comment on the defendant’s silence unconstitutionally penalized Salinas’s exercise of his Fifth Amendment right to remain silent.

The Salinas case made it to the Supreme Court, where a 5-4 majority spearheaded by Justices Alito, Kennedy, and Roberts ruled against him. The majority opinion states that Salinas' Fifth Amendment protection claim failed because Salinas "did not expressly invoke" the Fifth Amendment in response to the officer's question about the shotgun.
This isn't the first time that the Supreme Court has asserted the "use it or lose it" doctrine in Miranda cases; in Berghuis v. Thompkins (2010), the Court ruled that a murder suspect who remained silent through 3 hours of police interrogation before breaking down and responding "Yes" to the question, "Do you believe in God?" waived his right to remain silent.

The difference in Salinas v. Texas is that Genovevo Salinas was never under arrest: he was under the impression that the police wanted him “to take photographs and to clear him as [a] suspect.” He volunteered to help the police in their investigation and exercised his right to remain silent.

In a vigorous dissent Justices pointed out that the Court had repeatedly held that “no ritualistic formula is necessary to invoke the privilege,” and that whether the right was invoked turned on the circumstances.  The particular circumstances in this case -questioning of an unrepresented suspect in a criminal investigation at the police station- made it obvious that Salinas was invoking his fundamental Constitutional right to remain silent.


As the Salinas dissent points out, because of its focus, the plurality’s ruling seems to open up future dispute regarding whether the individual’s words or actions are clear enough to invoke the privilege.  Decisions in this area suggest that if a witness mentions the word “lawyer” in declining to speak to investigators, courts are more likely to view that as an invocation that cannot be commented upon.  Future decisions might also limit Salinas’s rule to cases where the witness was silent on only one question or a limited number of questions in the midst of an interview, viewing an express refusal to answer any further questions as clear enough notice that the witness is invoking the Constitutional privilege.

If you have been charged with or are under investigation for a serious crime, we are entirely committed to protecting your rights. Richard Kuniansky will provide a thorough evaluation of all the facts of your case, prepare a powerful defense, and use our strong courtroom skills and extensive experience to effectively advocate on your behalf. For more information please visit www.kunianskylaw.com or contact us at 713-622-8333 for a free initial consultation.

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References:
"Miranda" Rights and the Fifth Amendment (FindLaw)
Miranda v. Arizona: uscourts.gov
Salinas v. Texas in the U.S. Supreme Court: Does the Fifth Amendment Protect the Right to Remain Silent?: Justia.com
The Supreme Court's Decision In Salinas v. Texas: Implications For White Collar Investigations: Forbes