by Sherry F. Colb
In the first of a two-part series of columns on Verdict, I discuss the case of Salinas v. Texas, in which the U.S. Supreme Court recently granted certiorari. The case asks the following question: Does a suspect who is not in custody and has received no Miranda warnings have the right to remain silent in response to a police officer's questions, such that a prosecutor is barred from introducing the defendant's prior silence at trial as affirmative evidence of his guilt? In my column, I analyze some of the case law that bears on this question and consider how the Court might rule.
In this post, I want to focus more generally on the question of penalties for the exercise of rights that this case necessarily raises. In Salinas, the petitioner argues that if the government can introduce his silence as proof of guilt, then the suspect essentially operates under a threat: you either answer our questions or the prosecutor will tell the jury about your silence and ask for an inference of guilt. As Salinas sees it, this threat, by making the exercise of his right costly, pressures the suspect into answering the officers' questions and thereby violates his right not to be compelled to give self-incriminating information. This may be a fair characterization of the choice that he faces, but it is useful to consider the exercise of other rights -- unrelated to criminal procedure -- to see whether the "evidence as penalty" principle can be sustained.
Consider the First Amendment right to free speech. You have the right to express an opinion that is unpopular and that may offend a majority of the population. For example, you may write a book called "The God Hallucination" arguing that there is no God and that people who believe in God are essentially psychotic and should receive no legal protection for acting on their psychosis. It would plainly be unconstitutional for the government to punish you for expressing that view in your book, just as it would be unconstitutional, under the Fifth Amendment, for a judge to put you in jail for contempt as a punishment for invoking the Fifth Amendment and refusing to answer the question "Did you murder anyone last year?"
If we step away from the scenario of direct penalties, however, the penalty principle dissipates relatively quickly. If you authored "The God Hallucination," for example, and then later came under (legitimate) suspicion for burning down a house of worship, the fact that you expressed the views that you did might prove relevant to showing your animus toward religious worship, especially if your book identified the targeted house of worship and stated that you would not be sad if someone decided to burn it down. Such statements might, in other words, become legitimately admissible evidence of your motive to inflict damage on the church in question, notwithstanding your First Amendment right to speak as you did and thereby express your feelings about religion generally and about the victimized church in particular.
One could persuasively argue that the admissibility of your anti-religion statements at your criminal trial could have led you and could well lead others in the future to become reticent about expressing antipathy to religion. In terms of state action, then, one could accurately claim that introducing a person's expression of unpopular views at his criminal trial imposes a cost on such expression that could have a chilling effect on people expressing unpopular views. Like using a defendant's silence as evidence against him, introducing his speech could serve to chill the costly (but constitutionally protected) behavior in question.
I mention this comparison to Free Speech because it highlights the fact that whenever we introduce evidence of an individual's conduct or statements relevant to that individual's guilt or innocence, we place a price on that conduct. And if the conduct is constitutionally protected, then that price may chill the exercise of a constitutional right. Yet we rarely consider the introduction of a person's actions or statements into evidence at trial as a constitutionally invalid penalty for those actions or statements. Determining whether a person is guilty or innocent often requires a jury (or judge) to find out what sorts of feelings and motives the person on trial has, and one of the best ways to make such an assessment is by examining the person's behavior and communications in the past. If a person is known to possess the sort of firearm used in a crime, for example, the fact that the possession might itself be lawful and even constitutionally protected under the Second Amendment does not shield it from admission as evidence bearing on the case before the jury (or judge).
To some degree, distinguishing between an unconstitutional penalty and the simple introduction of probative evidence at trial is thus a judgment call rather than a straightforward factual or legal assessment. As we know from Griffin v. California, the law regards it as an unconstitutional penalty for the prosecutor to comment on a defendant's failure to take the witness stand at his own criminal trial, notwithstanding the arguable relevance of that failure to a factual assessment of guilt and innocence. And we know as well that the law permits the introduction of a defendant's failure to claim self-defense prior to receiving Miranda warnings, when offered to impeach a defendant's self-defense claims at trial, notwithstanding the pressure it places on suspects to speak when they would rather remain silent. In this sense, figuring out whether to call the introduction of behavior into evidence an unconstitutional penalty will resemble the calculations that surround decisions about whether to recognize (and how broadly to recognize ) a particular evidentiary privilege.
When we decide to recognize a privilege, we are deciding that a relationship (for example, between husband and wife) is not adequately protected by the fact that couples have the right to marry but that it must be further protected by shielding some of the couple's conduct -- including confidential communications -- from evidentiary disclosure. Whether to privilege a suspect's silence in this way similarly requires us (or, more accurately, requires the Justices on the U.S. Supreme Court) to determine how much is lost to the Fifth Amendment privilege in deterring silence to the extent that admissibility for the prosecutor's case in chief will deter silence, and measuring the loss against how much is gained by such admissibility in the pursuit of truth. Like so much in the law, it may come down to a value-laden cost/benefit analysis.