The Right to Remain Silent and the Act/Omission Distinction

by Sherry F. Colb

In part 2 of my Verdict column this week, I continue my analysis of Salinas v. Texas, the case currently before the Supreme Court posing the question whether suspects outside of custody who have received no Miranda warnings have the right to remain silent and a corresponding right to exclude their silence from the prosecutor's case in chief at their criminal trial.  In this post, I would like to take up the question whether we really enjoy a "right to remain silent" at all.

Under Miranda v. Arizona, police officers holding a suspect in custody must tell the suspect that she has the right to remain silent (along with several other famous warnings) before interrogating her.  The reason for the warning is to help safeguard the suspect's Fifth Amendment right against compelled self-incrimination in the inherently coercive atmosphere of incommunicado police interrogation.

Outside of custody, however, and outside other contexts such as a criminal trial in which the suspect's status as a criminal suspect (or criminal defendant) is plain, do individuals have a constitutional right to remain silent?  No.  In our system, the jury (or grand jury or judge) is entitled to "everyman's evidence," and people have a corresponding obligation to testify in court when they are called as fact witnesses, regardless of whether they would prefer to remain silent, absent an evidentiary privilege they can assert (such as the Fifth Amendment privilege against compelled self-incrimination).

Say you witness a bank robbery, for example, and the prosecution calls you to testify.  You take the stand, and the prosecutor asks you whether you saw who robbed the bank.  You respond that you did.  The prosecutor asks who it was, and you say "I refuse to answer, because I have a right to remain silent."  The judge will instruct you at that point that you must answer the question, unless a truthful answer could provide a link in the chain of evidence incriminating you.  You might want to remain silent because you know and like the person who committed the robbery and would prefer not to harm him, but you must answer the question nonetheless.

If you refuse to speak, notwithstanding the judge's instruction, the judge may hold you in contempt of court and either fine you or place you in jail.  That you may be placed in jail for doing (or not doing) something is perhaps the clearest legal signal that what you did (or did not do) receives no constitutional protection.  To give an extreme example of the law's entitlement to compel you to speak, there have been battered women who were held in contempt for refusing to testify against their batterers, even though their reasons for refusing might well have included a fear of retaliatory violence from the very batterers against whom they had been  asked to testify.  For the record, I have disapproved of this use of the contempt power here, though not because of any constitutional right to remain silent.

What people may find jarring about the idea of going to jail for remaining silent is that it represents one of the unusual occasions on which we may be punished for an omission rather than for an act.  Ordinarily, the criminal law imposes prohibitions upon us, and we fully comply with those prohibitions by refraining from committing the affirmative act in question.  It is unusual for us to be held criminally responsible for what we have not done.  We have some affirmative duties within our relationships, so everyone understands that if you have a child and fail to feed him (or to arrange for someone else to feed him), then you are guilty of child neglect.  Similarly, you have a legal obligation to file an accurate tax return.  But providing information under oath (or affirmation) about a crime or other event that you happened to see is different from these limited criminal-law obligations to act:  you in no way intentionally undertook a relationship to the events that you fortuitously witnessed.  You may in fact have been a victim of what occurred.  Yet the government can compel you, under threat of jail (either as an incentive -- civil contempt, or as a punishment -- criminal contempt), to speak about what you witnessed.  To some (presumably everyone who objected to the Affordable Care Act for requiring people to pay for health insurance), this obligation to speak may seem oppressive and foreign.

The primary explanation for this responsibility is that the court system in the United States could not function without witnesses.  People might want to refuse to testify because (a) they do not care about helping the government or a party in a civil suit pursue the particular litigation in question, (b) they do care but have other competing obligations that would suffer as a result of their testifying, or (c) they like the people whom they witnessed committing crimes, torts, or contract-breaches.  Yet we need those people to step up and contribute what they know. Without their cooperation, the system would grind to a halt.

So what is so special about remaining silent when it comes to self-incriminating information?  Why have a privilege protecting that?  The answer is complicated, but it has something to do with a fear of the government taking the easy route to conviction by forcing people to accuse themselves of crime.  In other words, we are very wary of practices that may yield (1) false confessions and (2) brutalization.  Such practices can be quite tempting, given the challenges involved in investigating and building a case without the defendant's confession.

If there were a way to avoid brutality and false confessions, I think the rationale for giving people the right to refuse to provide truthful information about their own actions in open court would diminish substantially.  Though defenses of the Fifth Amendment right often invoke broad notions of an adversarial versus inquisitorial system of justice, we do in fact compel criminal suspects and defendants to participate in their own prosecution in assorted ways (for example, by appearing in lineups and submitting to searches and seizures, including those required to get blood samples and fingerprints).  What's left to the right, I think, has more to do with protecting against brutalization and false convictions than it does about anything unique about being required to utter self-incriminating facts.  I understand that this is not everyone's view (Justice Douglas, for example, believed in a much broader and more robust Fifth Amendment), but it seems most in line with the shape of our existing Fifth Amendment and other criminal procedure doctrine.  I think it also makes sense.