When the United States Supreme Court decided that horrible Salinas v. Texas – that silence is not the same as invoking your right to silence – it left many questions unanswered: primarily, if a person does invoke his right to be silent, can the prosecution still use that invocation as proof of guilt?
In Salinas, SCOTUS said that since Salinas had not properly invoked his privilege, his silence could be used against him. In a post providing commentary and analysis on that issue, Orin Kerr at Volokh asked two questions:
Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?
Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.
The Second Circuit answered that second question today: the invocation is sacrosanct and cannot be used a evidence of guilt.
Boucher walked over to Okatan’s car, identified himself as a border patrol agent and asked Okatan if he was a United States citizen. Okatan said that he was and handed over his passport. Boucher then asked why Okatan had passed the rest area on the east side of the highway and made a U-turn to enter the Beekmantown rest area. Okatan replied that he had to use the bathroom.
Boucher warned Okatan that lying to a federal officer is a criminal act and asked whether he was there to pick someone up. Okatan said that he wanted a lawyer. At that point, Boucher placed Okatan under arrest and transported him to the Champlain border patrol station.
Okatan was arrested and filed a motion to suppress statements made to Boucher after his invocation of his right to counsel1, which was granted by the trial judge.
At trial, Boucher testified about the demand for a lawyer and the prosecutor argued – as feared pre and post-Salinas – that the request for a lawyer was indicative of guilt.
After all, only the guilty need lawyers. If you haven’t done anything, you will answer our questions, even if those answers will incriminate you2.
The new warning, if the Government’s rationale prevails, should be: “You’re under arrest. You’re screwed. Anything you say or don’t say or do or don’t do will be used as conclusive proof of guilt. Do Not Pass Go. Go Straight To Jail.”
Luckily the Second Circuit wasn’t buying this. Applying the novel issues presented by Salinas, the court found that first: Okatan did invoke his privilege against self-incrimination, unlike Silent Salinas and that he was entitled to invoke that privilege3.
Second, the court then explored whether the prosecution “may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief” and concluded that “it may not”.
Relying on the rationale of Griffin v. California, the court held that to permit comment by the prosecution on the invocation of the privilege would be to impose a penalty on the exercise of Constitutional rights.
Here we had a situation of a man, who by sheer dumb luck, managed to navigate the complex and moving obstacle course that the judiciary has set up en route to the invocation of Constitutional rights and yet the prosecution wanted to take that turn it to its advantage yet again.
When we live in a world where “I want a lawyer” is de facto evidence of guilt, we will live in a world where that lawyer wouldn’t even be able to help us.
As luck would have it, I suspect Okatan might be on the fast-track to SCOTUS, so if you want to take bets on how fast that police state might arrive, you might want to do it now.
Update: Scott has a post on Okatan too, which seems to be essentially in agreement with my take.