In a new article for Slate, University of Virginia Law Professor Brandon Garrett calls this week’s decision from the Supreme Court that cuts off the right to remain silent a terrible and dangerous ruling on the Fifth Amendment.
Salinas v. Texas
, Genovevo Salinas, who had not been read his Miranda rights, became quiet upon being asked if his gun would match shell casings from a Houston crime scene. Prosecutors then described this behavior at his trial. Despite the Supreme Court’s previous position that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions, the high court ruled Monday that Salinas could have left during questioning instead of refusing to answer questions. Garrett writes:
The court’s ruling in
is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. I have spent years studying cases of people exonerated by DNA testing. A large group of those innocent people falsely confessed—and many supposedly admitted their guilt even before any formal interrogation.
Twenty five percent of the 309 DNA exoneration cases involved a false confession or admission. Garrett cites the case of Nick Yarris, who spent 20 years on Pennsylvania’s death row for murder he didn’t commit before DNA testing proved his innocence, as a perfect example of how informal questioning can lead to a wrongful conviction.
Police who questioned Yarris didn’t record the conversation or take any notes, yet they claimed that Yarris volunteered information about the victim’s car that had been left out of media reports.
Questions first, rights later is the approach the court’s majority now endorses. And by giving the police more incentive to ask questions informally, the new ruling will also undermine the key reform that police have adopted to prevent false confessions: videotaping entire interrogations. Why not try to trap a suspect before the camera starts rolling? In only a few cases like Yarris’ will there be DNA to test. The likely result of the court’s embrace of shoddy interrogation tactics: more wrongful convictions.