Block on Trump's Asylum Ban Upheld by Supreme Court
Three years ago, the Supreme Court ruled in Berghuis v. Thompkins that a criminal suspect must affirmatively invoke his right to refuse questions. The Washington Post characterized the holding as "speak up ... to remain silent."
This month, the Court will revisit the right to remain silent to decide whether the Fifth Amendment protects a suspect who clams up during pre-arrest questioning.
The case heads to First Street from the Texas Court of Criminal Appeals, which held that testimony regarding pre-arrest silence can be used against a defendant in court. The state court explains:
Houston police officers discovered two homicide victims on the morning of December 18, 1992. An investigation led to [Genovevo Salinas], and he voluntarily accompanied officers to the police station for questioning. For approximately one hour, [Salinas] answered every question asked. Then, when asked whether shotgun shells found at the crime scene would match a shotgun found at his home, [he] remained silent, and, according to the interrogating officer, demonstrated signs of deception.
A ballistics test later matched Salinas’ shotgun with the casings left at the murder scene, and Salinas was charged with murder. After evading arrest for nearly 15 years, he was captured in 2007. Prosecutors introduced evidence of Salinas’ silence when he was questioned about the shotgun shells — over his trial objection — and the jury found Salinas guilty of murder.
I’m curious to see how the Court responds to this question. If a majority finds a suspect’s pre-arrest silence can be offered against him, wouldn’t the ruling ultimately backfire on law enforcement officers? Wouldn’t people hauled before the police refuse to answer all questions, rather than refusing to answer only certain questions? Granted, there would be more convictions initially as news of the ruling trickled through the Interwebs, but suspects would start to catch on after a few seasons of Law & Order perps parroting “Am I under arrest? Am I free to go?”