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Right to Remain Silent

May 01
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Pre-Arrest, Pre-Miranda Right to Remain Silent

By Miranda

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused’s silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is “irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak.”

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…

UPDATE:  US Supreme Court opinion – Salinas Supreme Court Opinion

Feb 01
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Trial Judge Influences (But Does not Compel) a Defendant to Testify

By Uncategorized

The 5th Amendment to the United States Constitution: “[N]o person…shall be compelled in any criminal case to be a witness against himself.”

On January 25, 2012, the Texas Court of Criminal Appeals issued its opinion in the case of Johnson v. State.  This case specifically dealt with a situation that occurred during the sentencing phase of a trial involving defendant Charles Michael Johnson.  Johnson was arrested in 1991 and subsequently indicted for Possession of a Controlled Substance with intent to deliver.  He was released on bond and failed to appear for any further hearings.  Eighteen years later, Johnson was arrested in Florida and returned to Texas to face the charges.  He was convicted by a jury at trial and then elected to have the court assess punishment.

After the State rested it’s punishment case, the defense had the court take judicial notice of the pre-sentence investigation and then rested.  At that point, the judge asked the Defense if its client wanted to testify.  The Defense stated that he would not.  The judge’s response was, “In all candor, I would kind of like to know what he’s been doing for the last 18 years.” The Defendant then went to the witness stand and testified.  At the end of the hearing, the judge stated, “ Okay. Well, this is obviously a very difficult case in that it’s apparent to me that he has stayed out of trouble, essentially at least, in any realistic way.  I mean, driving with a license suspended is no big deal in the context of things, but on the other hand, I don’t want to reward somebody for running, and I do believe that the defendant lied under oath, sir. I’m sorry. That’s what I think.” The judge then sentenced him to ten years’ confinement.

On appeal, Johnson argued that the trial court had compelled him to testify against himself in violation of his Fifth Amendment right to silence.  The CCA relied on previous precedent establishing the general rule that the privilege to avoid self-incrimination is ordinarily not self-executing.  Minnesota v. Murphy, 465 U.S. 420.  By “not self-executing,” the CCA noted that a defendant can voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand and make incriminating statements even if not done knowingly or intelligently.  The CCA stated that the issue was not whether Johnson make a knowing, intelligent and voluntary waiver of his privilege to remain silent, but whether he voluntarily testified or was “coerced” to testify against his will.  The CCA indicated that this question hinged on whether Johnson feared that the trial court would penalize him for remaining silent (which the Court also called the “classic penalty situation”).  The Court found that there was no direct evidence that it would.  Additionally, the CCA found that neither Johnson nor his counsel made any comment indicating that they believed if he remained silent a greater punishment would be assessed.

Finding that Johnson was not confronted with the “classic penalty situation,” the CCA held that he had forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in his own defense, despite the trial courts comments before he did so.

Nov 17
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An Ambiguous Request is No Request at All

By Miranda, Right to Counsel

In a recent case from the U.S. Court of Appeals for the Fifth Circuit (Federal), the court considered whether police interrogation of a suspect violated the suspect’s constitutional right to an attorney when the suspect voluntarily continued the conversation with the officers.

United States v. Carillo – While the defendant was in jail on a parole violation, officers went to interview him about his involvement in a drug distribution conspiracy.  After being read his Miranda rights, the defendant invoked his right not to be questioned without an attorney present.  The officers stopped talking to him and left.  The next day the defendant told jailers that he wished to speak to the officers from the day before.  The officers returned to the jail, advised him of his Miranda rights, which then led to a discussion about the defendant’s right to an attorney.  The defendant made three comments during this time.  He told the officers, “I wish I had a lawyer right here,” “I wanted to see if we could push this thing to where I could get my lawyer,” and “I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it.” After one of the officers told the defendant that he would get an attorney at his arraignment, the defendant asked the officer what would happen if he agreed to talk to the officer now.  The kind and helpful officer told the defendant that he would just be cooperating and helping himself and once he got into the federal system he would get an attorney.  Hearing those words of encouragement, the defendant agreed to talk to the officers and (of course) made several incriminating statements, which led to his conviction.

On appeal, the appellant contended that his confession should have been suppressed because it was obtained in violation of his constitutional right not to be interrogated while in police custody without an attorney present, under Miranda v. Arizona, 384 U.S. 436 (1966).

The 5th Circuit recognized that the defendant’s three comments, when viewed separately, appeared to indicate that he was invoking his right to counsel.  However, the Court held that when considering the entire context in which the defendant made the comments, a reasonable police officer would not have understood him to be saying that he wanted to stop talking with the police without an attorney present.  The court held that the defendant’s comments to the officers were ambiguous at best.  They expressed the defendant’s preference to have an attorney present, however, the fact that he kept talking to the officers indicated that he also wished to keep the interview going and not to end it by invoking his right to counsel.  The defendant re-initiated communication with the officers after he ended the interview the day before by invoking his right to counsel, so he was clearly aware of how he could end the interview.  The defendant was merely weighing the pros and cons of talking to the officers without an attorney present which he eventually decided to do.