My Own Little Supreme Court Update

July 2, 2013
By Hanging Out with Carl Gunn



  • On the good side, the Harris case saying Apprendi doesn’t apply to facts that increase only mandatory minimums is overruled and Apprendi now applies equally to those facts.
  • On the bad side, the Supreme Court held that a person has to expressly invoke the privilege against self-incrimination and mere silence in response to noncustodial police interrogation isn’t an assertion of the privilege against self-incrimination, so comment on that silence doesn’t violate the Fifth Amendment.
  • Left unanswered – and hence an area for potentially fruitful litigation – is what a person has to do to “expressly invoke” the privilege, because, in the Court’s own words, “no ritualistic formula is necessary.”



Now that the Supreme Court term is over, I thought I’d do my own little Supreme Court update on three cases I flagged for watching in several prior posts during the past year. One simple, one not so simple, and one potentially pretty complicated.

The simple one is the Alleyne case that I flagged in a post back in January (see “Hope Springs Eternal in the Heart of an Ex-Public Defender” through the January 2013 link at the right), in which the Supreme Court granted cert to decide whether it really meant it when it held in Harris v. United States, 536 U.S. 545 (2002) that the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000) doesn’t apply to facts that just increase a mandatory minimum without increasing a maximum. You may recall (see the prior post if you don’t) that Justice Breyer joined the majority in Harris only because he still didn’t accept Apprendi, that he stated that he couldn’t join the plurality opinion in Harrisbecause he saw no principled difference between facts that increased a maximum and facts that increased only a mandatory minimum, and that he had since openly mused that at some point he supposed he had to accept Apprendi.

Well, Justice Breyer finally accepted Apprendi in Alleyne, opinion found here. He joined a majority to overrule Harris and holdApprendi applies equally to facts that increase just a mandatory minimum. He “continue[s] to disagree with Apprendi,” but “Apprendi has now defined the relevant legal regime for an additional decade” and “in [his] view, the law should no longer tolerate the anomaly that the Apprendi/Harris distinction creates.” So Harris is overruled and Apprendi applies not just to facts increasing a maximum, but also to facts that increase just a mandatory minimum – in Alleyne and Harris, it was the fact of “brandishing” or “discharging” a gun that increases the mandatory minimum under 18 U.S.C. § 924(c) from 5 to 7 or 10 years, respectively.

The next, less simple case is the Salinas case that I flagged in another post back in February (see “They Can’t Use Your Silence Against You Here. But They Can There. And There. So What About This Other Place?” through the February 2013 link at the right), opinion linked here. The issue the Supreme Court granted cert to consider in Salinas was “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,” slip op. at 3, which is an issue on which the lower courts are divided (see my prior post discussing this, along with several other silence scenarios). But the plurality opinion dodged the issue, see slip op. at 3 (acknowledging that it was not reaching question on which cert was granted), by holding that comment on the defendant’s silence was permissible in that case because the petitioner “did not expressly invoke the privilege against self-incrimination in response to the officer’s question.” Slip op. at 1; see also id. at 3. Instead, the petitioner had “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up,” slip op. at 2 – and (left out of the opinion’s description) remained silent.

Left unanswered by the plurality opinion is what a person has to do to “expressly invoke the privilege against self-incrimination.” The plurality did acknowledge that “no ritualistic formula is necessary in order to invoke the privilege.” Slip op. at 2 (quotingQuinn v. United States, 349 U.S. 155, 164 (1955)). But it’s apparently not enough to simply “decline to answer,” because, in the plurality’s view, “someone might decline to answer a police officer’s question in reliance on his constitutional privilege[, b]ut he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else.” Slip op. at 9. The plurality opinion explained that “popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself’; it does not establish an unqualified ‘right to remain silent.’” Slip op. at 10. (Interestingly, though, isn’t a “right to remain silent” exactly what Miranda says officers have to tell an arrestee he has?)

The dissenting opinion nicely points out the ambiguity left by the plurality opinion (translation for us lawyers: the issues remaining to be litigated) as well as the potential unfairness to uneducated suspects if the plurality opinion is applied too strictly.

The plurality says that a suspect must “expressly invoke the privilege against self-incrimination.” But does it really mean that the suspect must use the exact words “Fifth Amendment”? How can an individual who is not a lawyer know that these particular words are legally magic? Nor does the Solicitor General help when he adds that the suspect may “mak[e] the claim ‘in any language that [the questioner] may reasonably be expected to understand as an attempt to invoke the privilege.’” What counts as “making the claim”? Suppose the individual says, “Let’s discuss something else,” or “I’m not sure I want to answer that”; or suppose he just gets up and leaves the room. How is simple silence in the present context any different?

The basic problem for the plurality is that an effort to have a simple, clear “explicit statement” rule poses a serious obstacle to those who, like Salinas, seek to assert their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail.

Slip op. at 11-12 (Breyer, J., dissenting) (citations omitted).

Looks like there’s multiple issues to litigate right in that quote, so go to it, my friends. And remember that there’s other case law for silence in other contexts, like silence in a custodial setting and silence when Miranda rights have been read, that are discussed in my prior post. And in federal court don’t forget theevidence rule limitations suggested by United States v. Hale, 422 U.S. 171 (1975), discussed at more length in the post that followed the one about Salinas (see “The Constitution Is All Fine and Good, But Don’t Forget the Rules of Evidence,” also through the February 2013 link at the right.) These evidentiary limitations may be even more important to keep in mind afterSalinas.

Finally, there is a third Supreme Court case I’d flagged that came down this month – the Descamps opinion on the modified categorical approach (see “They May Reverse the Ninth Again! (But This Time We Want It.”) through the October 2012 link at the right). Descamps deserves more discussion than should go into a post that’s already this long, though – and it’s one of my favorite topics – so the discussion of that will come next week.