Your Right to Remain Silent & Right to a Jury: When and Where?
Errol A. Can, Esq.
I wanted to discuss two cases that were decided at the Supreme Court today concerning criminal law. The first deals with the right to remain silent, and the second deals with mandatory maximum sentencing laws.
The first case is Salinas v. Texas 570 U.S. ____ (2013), and it involves the issue of the right to remain silent under the Fifth Amendment. Salinas was suspected of a 1993 murder, and police brought him in for questioning. He agreed, making the police questioning voluntary. After answering their questions for roughly an hour, police asked if the shotgun shells found at the murder would match, in a ballistics test, to his personal shotgun. He then fell silent, and didn’t answer the question. Police then continued with other questions, which he answered. He was released, however after police received additional evidence he was charged with murder. However, he had left the area and wasn’t arrested until 2007. At his trial, prosecutors introduced as evidence that Salinas had not answered their question regarding the shotgun shells, to which he objected as a violation of his Fifth Amendment rights. The case was appealed, eventually making its way to the Supreme Court.
The Court’s holding was that, because Salinas did not expressly invoke his right to remain silent as a response to the police’s question, the silence being introduced as evidence did not violate his Fifth Amendment rights. The Court reasoned that the right to remain silent, when a citizen voluntarily speaks with police and is not in custody, is a privilege, and a citizen must inform the police of their intention of invoking the privilege. Otherwise, the citizen is not entitled to the protections as there is no express “right to remain silent” under the Fifth Amendment, only the right against self-incrimination, and because Salinas was not in fact compelled and rather was voluntarily asking questions, the silence could be introduced as evidence. Now, this certainly has significant implications, for not many citizens will know to expressly tell police during a voluntary discussion they wish to avail themselves of the privilege of the right to remain silent, and further that their silence, if not invoked under the Fifth Amendment, can be admitted as evidence.
The second decision I wanted to outline is Alleyne v. United States 570 U.S. ____ (2013), which involves mandatory minimum sentencing. Alleyne was charged with using a firearm in connection to a crime of violence, a violation that carries with it a mandatory 5-year minimum sentence. However, if the firearm is brandished, an increase in the mandatory minimum sentence is triggered to automatically increase the sentence to a 7-year mandatory minimum. Alleyne was charged with brandishing a firearm, and received the 7-year minimum. Most notably, the judge presiding over his case found that the firearm was brandished and triggered the minimum sentence, not the jury. This was consistent with Harris v. United States 536 U.S. 545 (2002), which stated that “judicial factfinding that increases a mandatory minimum is consistent with the Sixth Amendment.” However, in Alleyne, the Court reversed, and instead found that facts that would increase the mandatory minimum sentence must be submitted to a jury and then found beyond a reasonable doubt so as to be consistent with the Sixth Amendment. Therefore, the implications of this case are clear: when there is evidence that would aggravate an offense and impose a greater mandatory minimum sentence, the facts surrounding the aggravation must be submitted to a jury and found beyond a reasonable doubt before the mandatory minimum sentence is increased.
Taken together, these cases should have some substantial implications in criminal law. First, the right to remain silent in voluntary questioning with police must be invoked, otherwise simply failing to answer can be admitted as evidence since the right to remain silent is a privilege and the Fifth Amendment protects against self-incrimination, but when voluntarily answering questions, a citizen is not being “compelled.” And, when reviewing the decision in Alleyne, it now means that any facts that would aggravate an offense and trigger a greater mandatory minimum are now to be submitted to a jury, not a judge, and must be proven beyond a reasonable doubt.