Updated June 17, 2013: The Supreme Court, in a plurality opinion (pdf) written by Justice Alito, ruled that the right to remain silent must be expressly invoked in order for that silence to be protected at trial, even if that silence is pre-arrest.
We have all heard it before, some of us through personal experience and others through fictional television shows such as Law & Order: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be provided for you.” These words have maintained their significance in the decades since the Miranda warnings were first conceived, but recent events have only further emphasized their importance.
The Supreme Court of the United States heard arguments in Salinas v. Texas, a case concerning the Miranda warnings, on April 17, 2013, just two days after the Boston Marathon bombings and two days prior to one of the suspects being apprehended. The coincidental timing of Salinas and the Miranda-related issues arising following an act of terror carried out by two young brothers was simply unimaginable.
When the police take a suspect into custody, prior to questioning him, the police must inform the suspect of his Fifth Amendment right against making self-incriminating statements.
On June 13, 1966, the Supreme Court interpreted the Fifth Amendment rule against self-incrimination in Miranda v. Arizona. Ernesto Miranda was accused of robbery, kidnapping, and rape. After police interrogated Mr. Miranda without informing him of his right against self-incrimination, he confessed to the crimes. The Supreme Court held that when the police take a suspect into custody, prior to questioning him, the police must inform the suspect of his Fifth Amendment right against making self-incriminating statements. The questioning then must immediately stop if the suspect indicates prior to or during questioning that he wishes to remain silent. Additionally, if the suspect asks for an attorney, the police must stop the questioning until an attorney is provided for the suspect.
In certain circumstances, however, a suspect does not need to be Mirandized prior to questioning. One of these exceptions was given great attention following the bombings on April 15, 2013, at the Boston Marathon.
The public safety exception allows investigators to question a suspect to determine if there are any further, immediate threats to public safety.
After the bombs went off, chaos ensued. A few days later, a citywide manhunt for Dzhokhar and Tamerlan Tsarneav was under way. Just two days after Salinas was argued in the Supreme Court, suspect Dzhokhar Tsarnaev, a recently-naturalized United States citizen, was taken into custody after a shootout in Watertown, MA. Government officials quickly announced an intention to question Tsarnaev under a Miranda exception known as the “public safety exception,” established by the Supreme Court in New York v. Quarles in 1984. The public safety exception allows investigators to question a suspect to determine if there are any further, immediate threats to public safety. However, once the concern for the safety of the public is over, investigators must then inform the suspect of his Miranda rights.
Questions about the government’s choice to invoke the public safety exception arose almost as immediately as the government’s announcement. Members of the legal community and the media began publicly questioning the applicability of the exception to the situation. For all accounts, the bombers were not believed to be part of a larger group. Certainly valid concerns existed as to whether additional bombs or weapons were otherwise unaccounted for, but it was the government’s claim of using the exception for “gaining critical intelligence” that gave rise to questions over the legality of interrogating Tsarnaev without first reading him his Miranda rights.
The debate continues as to whether a public safety concern persisted after Tsarnaev was taken into custody and whether the government had the authority to invoke that exception to Miranda. While some lawmakers believe law enforcement should have continued interrogating Tsarnaev without advising him of his rights, Judge Bowler, a federal judge in Boston, and a representative from the U.S. Attorney’s office read Tsarnaev his Miranda rights three days after his arrest. At his hospital bedside that day in Boston, sixteen hours after the interrogation began, Tsarnaev invoked his Fifth Amendment right to silence and was later charged with using a weapon of mass destruction.
The Texas Court of Criminal Appeals held in Salinas v. Texas that testimony regarding pre-arrest silence could be used against a defendant in court.
Just a few days prior to Tsarnaev’s invoking of his Miranda rights, the Supreme Court heard arguments in Salinas as to when the right to remain silent should begin. Mr. Salinas was suspected of murdering two victims but had not yet been charged with the crime. He voluntarily went to the police station with officers, where he was questioned for an hour, including being asked by officers if a ballistics analysis would link his shotgun to the killings. Mr. Salinas simply looked to the floor and said nothing. The State used this silence against him at trial as evidence of guilt. Mr. Salinas was found guilty of murder, and he subsequently appealed his conviction. The Texas Court of Criminal Appeals then held that testimony regarding pre-arrest silence could be used against a defendant in court.
During argument before the Supreme Court, Justice Breyer inquired as to where the line would be drawn—referring to when a criminal defendant’s silence could be used against him at trial. In response, Mr. Salinas’s attorney said that, prior to an arrest, a person being questioned should not have to claim the right to remain silent in order to avoid having his silence used against him in court. On the other side, the State argued that if an individual does not invoke his Fifth Amendment right to silence, then his pre-arrest silence in response to a specific question should be admissible against that individual at trial.
A decision on where the line will be drawn will likely come by June of this year.
While America awaits the trial of Dzhokhar Tsarnaev, the legal community and law enforcement across the nation will be waiting on the Supreme Court’s decision in Salinas. Should the Supreme Court decide that the right to remain silent begins as soon as the police have regarded someone a suspect, it will significantly impact the way in which police officers conduct an investigation. A decision on where the line will be drawn for those speaking with police pre-arrest will likely come by June of this year. On the other hand, time will tell if and when the validity of the government’s use of the public safety exception to Miranda will be tested as to Tsarnaev’s confessions.