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Salinas v. Texas

Salinas v. Texas

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Published by Cato Institute
The American Constitution created an adversarial criminal justice system. A basic feature of this system is that the accused cannot be compelled to give evidence in a criminal proceeding. However, should the accused elect to testify, he is subject to cross-examination by the prosecution. This case concerns the interaction between government agents and citizens prior to trial and prior to any arrest. In this case, police questioned Genovevo Salinas about a double murder. At first, Salinas answered the questions posed, but then decided to stop cooperating and remain silent. Later, at his trial, the prosecutor told the jury that Salinas's refusal to answer questions was evidence of his guilt. The question before the Supreme Court is whether such prosecutorial comments about an accused's silence can be used in court. The Supreme Court has already held that it is improper for prosecutors to comment on a defendant's decision not to testify during his trial. The Supreme Court has also held that it is improper to comment on an accused's silence after he has been placed under arrest. The question in this case is whether it is improper for prosecutors to comment on a suspect's silence prior to formal arrest. For several reasons, the Cato amicus brief argues that prosecutors should not be able to comment on a citizen's silence at trial. First, under our adversarial system, the government must investigate its own case, find its own witnesses, and prove its own facts. That means citizens can (in the absence of a subpoena) choose to cooperate with police fully, partly, or not at all. Second, silence is not evidence of guilt. Thus, there is no valid reason to support the government's bid for admissibility (at least in the prosecution's case-in-chief). Third, a contrary ruling would complicate the law and confuse citizens about when they can remain silent in the face of police questioning.
The American Constitution created an adversarial criminal justice system. A basic feature of this system is that the accused cannot be compelled to give evidence in a criminal proceeding. However, should the accused elect to testify, he is subject to cross-examination by the prosecution. This case concerns the interaction between government agents and citizens prior to trial and prior to any arrest. In this case, police questioned Genovevo Salinas about a double murder. At first, Salinas answered the questions posed, but then decided to stop cooperating and remain silent. Later, at his trial, the prosecutor told the jury that Salinas's refusal to answer questions was evidence of his guilt. The question before the Supreme Court is whether such prosecutorial comments about an accused's silence can be used in court. The Supreme Court has already held that it is improper for prosecutors to comment on a defendant's decision not to testify during his trial. The Supreme Court has also held that it is improper to comment on an accused's silence after he has been placed under arrest. The question in this case is whether it is improper for prosecutors to comment on a suspect's silence prior to formal arrest. For several reasons, the Cato amicus brief argues that prosecutors should not be able to comment on a citizen's silence at trial. First, under our adversarial system, the government must investigate its own case, find its own witnesses, and prove its own facts. That means citizens can (in the absence of a subpoena) choose to cooperate with police fully, partly, or not at all. Second, silence is not evidence of guilt. Thus, there is no valid reason to support the government's bid for admissibility (at least in the prosecution's case-in-chief). Third, a contrary ruling would complicate the law and confuse citizens about when they can remain silent in the face of police questioning.

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Categories:Types, Research
Published by: Cato Institute on May 08, 2013
Copyright:Attribution Non-commercial

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05/08/2013

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No. 12-246
In The
Supreme Court of the United States
G
ENOVEVO
S
 ALINAS
, 
 Petitioner,
v.T
EXAS
,
Respondent.
On Writ of Certiorari to theTexas Court of Criminal Appeals
BRIEF OF THE RUTHERFORD INSTITUTE AND THE CATO INSTITUTE AS
 AMICI CURIAE 
IN SUPPORT OF PETITIONER
LANTAGNE LEGAL PRINTING801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
John W. Whitehead
 Counsel of Record
Douglas R. McKusickChristopher F. MoriartyRita M. DunawayT
HE
R
UTHERFORD
I
NSTITUTE
1440 Sachem PlaceCharlottesville, VA 22901(434) 978-3888Timothy LynchT
HE
C
 ATO
I
NSTITUTE
1000 Massachusetts Avenue, NWWashington, D.C. 20001(202) 842-0200
Counsel for Amici Curiae
 
 
i
QUESTION PRESENTED
Whether or under what circumstances theFifth Amendment’s Self-Incrimination Clauseprotects a defendant’s refusal to answer lawenforcement questioning before he has been arrestedor read his
Miranda
warnings.
 
 
ii
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF
 AMICI 
................................................ 1
SUMMARY OF THE ARGUMENT ............................ 1
 ARGUMENT ............................................................... 2
I.
Prosecutorial Comment on Pre-ArrestSilence is Impermissible, Counter to thePurposes of the Fifth Amendment, andBased on a Faulty Premise. ................................ 2
II.
Individual Reliance on Pre-Arrest SilenceHas Become an Entrenched Norm. .................... 8
CONCLUSION .......................................................... 11

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