Pre-trial, non-custodial, silence by a voluntarily cooperating person, during police questioning, was the subject of a prosecutor's invitation to the jury to draw an inference adverse to that person who was subsequently the defendant, in Salinas v Texas USSC No 12-246, 17 June 2013.
The intricacies of the law on the Fifth Amendment can be left with people in the United States of America, although they are not particularly difficult. Surprising it is, therefore, to see the Court split: the majority, comprised of a plurality of Alito J, joined by Roberts CJ, and Kennedy J, with a concurring opinion by Thomas J, joined by Scalia J, appear to have all agreed that the defendant had not invoked the Fifth Amendment, and that without invocation the prosecutor was free at trial to invite an adverse inference from the defendant's silence. Thomas and Scalia JJ did not discuss invocation because they considered that a more direct solution was to ask whether the prosecutor's comments were in breach of the Fifth Amendment by compelling the defendant to give evidence, holding that the comments did not. But they did not disagree with the plurality reasoning, as Thomas J says in his first paragraph: " ... even if he [the defendant] had invoked the privilege ...".
The minority, Breyer J joined by Ginsburg, Sotomayor and Kagan JJ, held that express invocation of the Fifth Amendment is not required, and that invocation can be inferred from the circumstances, with it also being relevant to ask whether there is good reason to excuse the individual from referring to the Fifth Amendment, such as "inherent penalisation simply by answering."
The case makes me think of two general matters:
The organisation of the opinions is helpful to readers and could be followed by other appellate courts. The dissenters refer to points in the majority's reasoning with which they disagree, and they state why. Then – and this is the significant point – the majority in footnotes refer to the minority's points of criticism and answer them. The reader is left with a complete account of the debate, rather than having points left hanging.
The other thing is about the marking of student's examination papers. What if a contentious issue, such as that in Salinas, was the subject of an examination question before it was determined by the Supreme Court? Some students, like some of the justices of the Court, would reason to one conclusion, others to the opposite conclusion. The ones who agreed with their teacher's opinion would perhaps – indeed, would probably – get better grades that the others. But the teacher might be wrong. Once the teacher's error is revealed by a final determination of the highest appeal court, should the examination grades be re-assessed? The grades may have been very important for the students, denying some of them scholarships or employment prospects. Undergraduates and graduates are usually members of a university, and perhaps their university should have a duty of care to its members to get its grading right and to correct errors whenever they may be revealed. Why should an incorrectly marked examination paper produce a permanent grade?