June 21, 2013

Supreme Court of the United States

Salinas v. Texas

No. 12-246        6/17/13  (plurality opinion)


Was the defendant’s 5th Amendment right against self-incrimination violated when the prosecutor argued that his pre-arrest, pre-Miranda silence when voluntarily submitting to police questioning was substantive evidence of guilt?

Holding (Alito, J.):

No. The 5th Amendment privilege is generally not self-executing and must be expressly invoked. The defendant did not invoke the privilege in this case, and neither of the exceptions to invocation (refusing to testify at trial or government coercion making forfeiture of the right involuntary) applied in this situation.
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Concurrence (Thomas, J.):

The 5th Amendment privilege against self-incrimination does not apply in pre-custodial interviews. Even if Salinas had expressly invoked the privilege, the prosecutor’s comments on his silence did not compel him to give incriminating testimony.

Dissent (Breyer, J.):

No ritualistic formula is needed to invoke the privilege; instead the court should look to the circumstances of the case to determine whether silence can be an invocation. Here it should have been because this was clearly a criminal investigation occurring at the police station, and Salinas, who did not have counsel, probably didn’t know he needed to expressly invoke the right to remain silent.


It is not often that a local assistant district attorney gets to present oral argument before the United States Supreme Court. And now the Harris County District Attorney and the State of Texas have given prosecutors across the nation a significant victory in the Fifth Amendment arena. There was a split of authority across the nation whether a defendant’s pre-arrest silence was protected by the Fifth Amendment, and the Court has settled that split in the State’s favor, and, I think, more consistently with the Court’s Fifth Amendment jurisprudence. As in most Fifth Amendment situations, if a defendant who is not under arrest does not wish to speak with the police or wishes to terminate an interview, he must merely say so. But if that defendant does not invoke his Fifth Amendment right, his silence or his failure to answer a question can be used against him, just like most any statement or behavior of the defendant. In most of our cases, this is really not going to change our practice that much. Prosecutors still cannot comment on a defendant’s failure to testify or comment on his post-arrest silence. Most defendants who do not want to answer a question probably will not answer any questions, and most defendants who start to answer questions will answer all questions. And do not get too excited. This ruling could easily change down the road if there is a change on the Court (this was, after all, a 5-4 decision). But it is good to have the law clarified for now, and it is always good to win, especially in the United States Supreme Court.

Alleyne v. United States

No. 11-9335        6/17/13


Does judicial fact-finding that increases the minimum mandatory sentence in a case violate the 6th Amendment right to a jury trial?

Holding (Thomas, J.):

Yes. Any fact that, by law, increases the mandatory minimum sentence for a crime is an element that must be found by the jury beyond a reasonable doubt. The Court overruled its earlier holding in Harris v. United States, 536 U.S. 535 (2002).
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Concurrence (Sotomayor, J.):

The principles of stare decisis support the overruling of Harris v. United States because “special justifications” exist in this case.

Concurrence (Breyer, J.):

Overruling Harris erases the anomalous rule that once required juries to find sentencing facts that allowed judges to impose higher sentences but did not require them to find facts that required judges to impose higher minimum sentences.

Dissent (Roberts, C.J.):

Statutory mandatory minimum sentences limit only the judge’s discretion in sentencing a defendant; they do not affect the role of the jury and therefore do not implicate the 6th Amendment.

Dissent (Alito, J.):

Apprendi was based on more dubious reasoning than Harris, and if the Court is going to overrule established precedent, it should overrule Apprendi


Most mandatory minimums in the State of Texas are presented during the guilt/innocence stage of the trial, so they normally should be addressed by a jury in the typical case. But keep any punishment issues in mind in your cases. If they raise the mandatory minimum, they must either be presented during the guilt/innocence stage like any other element of the offense, or they must be presented to the jury at the punishment stage (assuming that the jury is deciding sentencing). Sigh. And just when we thought that Apprendi had no more life to it.

Court of Criminal Appeals

Sanchez v. State

No. PD-1289-12        6/12/13


Does the “within three years” affirmative defense in PC §22.011(e) (sexual assault of a child) apply to PC §15.031(b) (criminal solicitation of a minor)?


Yes. The plain language of PC §15.031 incorporates the entirety of PC §22.011.
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I guess this decision makes sense. If the affirmative defense is a defense to the greater charge, then it should also be a defense to the solicitation of the greater charge. And it is a good rule of thumb when prosecuting any case under Chapter 15 of the Penal Code to keep the elements of the object offense (and all of its exceptions and defenses) in mind as well.

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