Still, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.
Salinas was convicted on both forensics evidence and testimony from his erstwhile co-conspirator; a shotgun he freely admitted to owning matched shells found at the scene of the crime, and his fellow criminal felt guilty after having a dream about the victims and testified against him.
'Not for impeachment' above means that his silence was not offered as dispositive of his guilt. There was plenty of other evidence to prove him guilty in the jury's eyes. That evidence is not appealed from, nor is the lawfulness of his arrest. Salinas' argument is that his conviction should be overturned because the prosecution should not have even mentioned the fact of his silence. You can't tell a jury that they must convict someone because the person was silent when asked an incriminating question. But Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.
In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.
Refusal to answer a question when in custody cannot be adduced as evidence of guilt. But even if you sit there and say nothing, the prosecution and police are perfectly at liberty to describe how you began sweating profusely and shaking when asked an apparently incriminating question. The prosecution may not submit as evidence expert testimony about what this means ('only a guilty person would react that way,') but the jury is perfectly entitled to draw its own inferences.
Nor is there a binary choice between silence and lying. When the officer asked Salinas if the shells from the murder scene would match his gun, Salinas could have made a noncommittal answer like 'how should I know?' or suchlike. Indications are that he had already voluntarily dug himself into a hole (admitting to owning the gun, how long it had been in his possession, that it had not been in anyone else's possession, and so on).
One other thing to bear in mind when reading the case is that appellate cases are restricted to questions of law. With certain rare exceptions, they do not examine questions of fact, which is the job of the trial court (and which is why if the conviction were overturned, another trial would take place because an overturning is not the same as an acquittal). When you read an appellate case, resist the temptation to imagine alternative interpretations of the facts that might lead to a conclusion of innocence; that is a determination for the jury, not the court. The appeals court is examining whether or not the trial was conducted properly, not the credibility of participants.
>'Not for impeachment' above means that his silence was not offered as dispositive of his guilt.
Are you sure? The way I read it, "not for impeachment but in its case-in-chief" means "as part of making its case, rather than to show that a witness' testimony was false" - different evidentiary rules apply to evidence introduced for impeachment (i.e. to show that a witness' testimony was false). I see nothing to imply that his silence wasn't used as evidence for his guilt, or that the jury knew to ignore it (how possible would that even be?)
>Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.
Surely that's the only way to ensure a suspect's silence will not be held against him?
>In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.
Sounds like we should have nothing to fear from a victory on his part then; sure there will be the cost of a retrial, but it's not worth sacrificing vital constitutional protections just to save the court a bit of work.
Your first sentence is correct, that's what I get for writing too late at night :-/ As far as the jury knowing to ignore it, that's what jury instructions are for. But note that the court sustained the objection to the police officer's inference that his silence was evidence of guilt, and required the prosecuting attorney to elicit a description of his actions (looking at feet, tightening up) in lieu of conclusory testimony about the significance of same.
On the other hand, the prosecutors reference in the summing up is not evidence. It's like pointing at a defendant and saying 'look! he sits there showing no remorse. Ladies and gentlemen of the jury, is there any doubt that this man is a cold-blooded criminal?' It's a an empty rhetorical argument, but no more so than 'My client has the face of a baby, look how sweet and innocent he is - you must acquit!'. Those statements aren't offered as facts for consideration, but as the opinion of counsel, which the jury is free to ignore. Witness testimony is supposed to be dry and factual; attorneys can work themselves into Shakesperean fits of indignation if they feel like it (I exaggerate, but not that much...I'd personally like to see stricter standards about this).
Surely that's the only way to ensure a suspect's silence will not be held against him?
But the jury is quite entitled to hold it against him. That's their call to make. What's not allowed is for the prosecution to say that the failure to answer is legal proof of guilt. Failure to answer does not unask the question, as it were.
I don't think we are sacrificing vital constitutional protections here. The guy wasn't under compulsion, and the record shows that his silence wasn't used as the basis of an improper arrest. The constitution is very explicit about scope of the 5th amendment, and there's a good deal of precedent backing up the court's decision.
specifically this part:
Still, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.
Salinas was convicted on both forensics evidence and testimony from his erstwhile co-conspirator; a shotgun he freely admitted to owning matched shells found at the scene of the crime, and his fellow criminal felt guilty after having a dream about the victims and testified against him.
'Not for impeachment' above means that his silence was not offered as dispositive of his guilt. There was plenty of other evidence to prove him guilty in the jury's eyes. That evidence is not appealed from, nor is the lawfulness of his arrest. Salinas' argument is that his conviction should be overturned because the prosecution should not have even mentioned the fact of his silence. You can't tell a jury that they must convict someone because the person was silent when asked an incriminating question. But Salinas is effectively arguing that the jury can not be informed of a question going unanswered, which I don't think is supported by precedent.
In the event that the Supreme court agrees with Salinas (unlikely IMHO), what will happen is that his case will be sent back to the lower court for a retrial, all the same evidence will be introduced, except that the prosecutor will studiously avoid mentioning this exchange. Then he'll be convicted again because there's loads and loads of other evidence.
Refusal to answer a question when in custody cannot be adduced as evidence of guilt. But even if you sit there and say nothing, the prosecution and police are perfectly at liberty to describe how you began sweating profusely and shaking when asked an apparently incriminating question. The prosecution may not submit as evidence expert testimony about what this means ('only a guilty person would react that way,') but the jury is perfectly entitled to draw its own inferences.
Nor is there a binary choice between silence and lying. When the officer asked Salinas if the shells from the murder scene would match his gun, Salinas could have made a noncommittal answer like 'how should I know?' or suchlike. Indications are that he had already voluntarily dug himself into a hole (admitting to owning the gun, how long it had been in his possession, that it had not been in anyone else's possession, and so on).
One other thing to bear in mind when reading the case is that appellate cases are restricted to questions of law. With certain rare exceptions, they do not examine questions of fact, which is the job of the trial court (and which is why if the conviction were overturned, another trial would take place because an overturning is not the same as an acquittal). When you read an appellate case, resist the temptation to imagine alternative interpretations of the facts that might lead to a conclusion of innocence; that is a determination for the jury, not the court. The appeals court is examining whether or not the trial was conducted properly, not the credibility of participants.