I am now convinced that I live in a weird parallel universe. As every American knows, the United States Constitution secures the right of every person not to incriminate him or herself. Since the famed Miranda vs. Arizona opinion, in nearly every television police show we hear the phrase, “You have the right to remain silent …” Now it seems that is not so. In a 5-4 plurality opinion, the Supreme Court held in Salinas v. Texas that it was not a violation of the privilege against self-incrimination for a prosecutor to tell the jury of the defendant’s refusal to answer a question because he did not expressly say he was invoking his Fifth Amendment privilege.
It seems that now the privilege against self incrimination or right to remain silent can only effectuated if the suspect expressly asserts this privilege — certain magic words – an incantation if you will. This ruling is absurd. Despite the crazy growth in the number of lawyers our nation produces, most of the population is not trained in the law and cannot be reasonably expected to know that the right to remain silent and not have that silence be used to by a prosecutor to imply guilt, is dependent upon the utterance of some yet to be determined words, which trigger the Fifth Amendment privilege against self incrimination.
Even more absurd (and scary) is Justices Scalia’s and Thomas’ assertion that they would allow juries to be told of a defendant’s silence and allow them draw an adverse inference from that silence in every circumstance, regardless of a defendant’s express assertion of the Fifth Amendment privilege — in essence they would render the Fifth Amendment to nothing more than meaningless words on an ancient document of little or no practical value.
This brings me to another subject. For the last several presidential elections I have told anyone who would listen (which as you might suspect is a precious few – who I’m I kidding? Probably no one), that the best way to select the next President is by carefully thinking about the type of individuals who would be appointed to the federal bench and particularly to the Supreme Court. Presidential election discussions tend to focus on things like “job creation” which is really silly since the President has very little ability to create jobs or to truly stimulate economic growth. The President does have the power through the judicial appointment process, which are lifetime appointments, to significantly affect our lives and freedoms – this is the far more important reason to select who we want as our President. Inevitably, a different Supreme Court would have lead to a different opinion and perhaps our Fifth Amendment privilege would not find itself in such peril.