The Supreme Court issued a judgment in Salinas v. Texas, No. 12-246, slip opinion (2013) dealing with the right of an individual to remain silent during questioning by police when not in custody, and the ability of prosecutors to refer to this silence at trial.  All the blawgs are going kind of nutso about this, bemoaning in most cases the end of the world, while I don’t think that it is as big a deal as some think.

In 1992, Genovevo Salinas was questioned about a double homicide in Houston where a shotgun was used to kill two brothers.  Salinas voluntarily handed over his shotgun for ballistics testing and accompanied officers to the police station for questioning.  As he was not in custody, he was not warned of his right to remain silent and he answered police questions freely.  That is, right until they asked if ballistic testing would match his shotgun to the shell casings recovered at the scene.  Then he did not say a word, not positively invoking his right against self-incrimination, but just not saying anything.  He was arrested on traffic warrants, but the Harris County DA did not feel that there was enough evidence to go to trial, and Salinas was released.

Salinas then disappeared for 15 years until he was arrested in 2007 under a different name.  At his trial, the prosecutor mentioned his silence.  Salinas was convicted and sentenced to 20 years.

Official 2007 portrait of U.S. Supreme Court A...

Official 2007 portrait of U.S. Supreme Court Associate Justice Samuel Alito (Photo credit: Wikipedia)

Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, issued the judgment in this case.  Justice Thomas, joined by Justice Scalia issued a concurrence.  Most commentators are focusing on the 5-4 vote of the Court, but are, in my opinion missing a key point.  I’ve used the word “judgment” rather than “opinion” throughout this post for a reason.

The decision is a plurality opinion and is therefore issued as a “judgment of the Court” rather than as an “opinion of the Court.”  It is a plurality opinion and is therefore not entirely precedential in nature.  While it is permissible to use a plurality decision as precedent, it must rest on common ground found among the varied majority justices.  See City of Erie v. Pap’s A.M., 529 U.S. 277, 285 (2000).   “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . ..’”  Marks v. United States, 430 U.S. 188, 193 (1977) (internal citations omitted).

In other words, a plurality opinion does not automatically state the law, and certainly not black letter law.

Here, the “narrowest grounds” appear to be non-existent.  J. Alito focuses on the failure of Salinas to affirmatively invoke his Fifth Amendment rights.  He noted that had Salinas properly invoked his rights or had been read his rights, the prosecutor would have been prohibited from mentioning his silence.  J. Thomas focuses on the comments by the prosecutor and the prohibition on such comments based on a suspects refusal to testify at trial.  Griffin v. California, 380 U. S. 609 (1965).

The grounds are not common, and the states are therefore allowed to disregard the decision as not being precedential.  Texas has already decided that prosecutor comments in these cases are allowed in Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012), aff’d sub nom. Salinas v. Texas, No. 12-246, 507 U.S. ___ (2013).  A court in Indiana can make the opposite decision.

And before lawyers start beating me up over this, yes, I know it will be cussed and discussed for a long while.  But really, this is no different than Justice O’Connor’s opinion in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).  Does stream of commerce apply or not?  Not according to J. O’Connor, but it does according to J. Brennan’s concurring opinion (and J. Stevens’ opinion).  No one really knows nationally if stream of commerce applies or not, lawyers have to look to the local jurisdiction.  It is no different here.

Of course, police officers, most of whom don’t understand the nuances of the law they enforce, will be all over this.  But most of them will screw it up.

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