Not long ago, the United States Supreme Court showed promising signs of supporting Constitutional protections of criminal suspects when it ruled that a warrant was necessary before dogs could sniff a residence for drugs. Unfortunately, that was not to last. Most recently, in Salinas v. Texas, the U.S. Supreme Court held that a criminal suspect's silence could be held against him or her before the suspect was read his or her Miranda rights.
Reading Miranda rights is one of the most basic components of criminal procedure. Since the landmark Miranda v. Arizona case in 1966, police officers are required to inform criminal suspects during an arrest that they have the right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to representation by an attorney, and if they are too poor to afford an attorney, they can have one appointed to represent them. Miranda rights are covered by the Fifth Amendment of the Constitution, which protects against self incrimination. If a criminal suspect asks for an attorney before speaking, then he or she is also covered by the Sixth Amendment, which states that the accused shall have the assistance of counsel.
Much to the consternation of West Virginia criminal defense attorneys and criminal defense attorneys elsewhere, Miranda rights have slowly been chipped away over the decades. Now recently, in a 5-4 decision, the U.S. Supreme Court stated that criminal suspects must actually speak if they want to maintain their right to remain silent. Writing for the majority was Justice Alito, and he was joined by Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Kennedy. Meanwhile, Justice Breyer wrote the dissent, joined by Justice Ginsberg, Justice Kagan, and Justice Sotomayor.
The case involved a suspect, Genovevo Salinas, who was convicted of murdering two men in 1992. Before Salinas was arrested and read his Miranda rights he was questioned by the police. He answered a few questions, but did not provide an answer when asked if his shotgun would be a match with the murder weapon. Salinas's silence was later used by Texas prosecutors as evidence of his guilt, and Salinas was later convicted and sentenced to 20 years in prison. Salinas appealed, arguing that his Fifth Amendment right to stay silent had been violated, but courts in Texas disagreed.
The majority supported Texas, stated that the Constitution did not protect pre-Miranda silence, and that the silence needed to be specifically invoked in cases where the suspect was not detained and is voluntarily answering questions. By contrast, the dissent argued that the Fifth Amendment prevented prosecutors from commenting on Salinas's silence.
One problem with the majority's reasoning is that most people are not aware of when their "rights" officially kick in without being read the Miranda speech. How is a layperson supposed to distinguish between voluntarily answering police questions and being coerced? Most of the time, a person asked by the police is going to feel compelled to comply, even if he or she could refuse. Given the nature of the questions, one cannot help but wonder if the Miranda speech should have been read much sooner than it was. But then again, at this rate, there probably won't be any Miranda requirement before long.