[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in two cases [JURIST report]. In Salinas v. Texas [transcript, PDF] the court considered the boundaries of the Fifth Amendment [text] right to remain silent prior to arrest. Genovevo Salinas was suspected of being involved in a murder. He consented to a search of his home, where police found a shotgun, and consented to questioning at the police station, but he was not arrested or given Miranda warnings [backgrounder]. An officer asked, “if the shotgun [his father had given them] would match the shells recovered at the scene of the murder.” Salinas looked down and refused to answer the question. The state then offered the refusal to answer as a key piece of evidence against Salinas, which he contends was a violation of his right against self-incrimination. The attorney for Salinas argued that using Salinas’ silence in this way violates Griffith v. Kentucky [opinion]:

The Fifth Amendment prohibits using a person’s silence during a noncustodial police interview against him at trial, and nothing about the specific facts of this case give this Court cause to refrain from applying that rule here. To the contrary, the State’s closing argument in this case urging the jury to find Mr. Salinas guilty because, quote, “an innocent person would have denied law enforcement’s accusations,” strikes at the core of everything the Griffin rule, and indeed the Fifth Amendment, is designed to prohibit. It evokes an inquisitorial system of justice. It effectively shifts the burden of proof onto the defendant, and it demeans individual dignity by conscripting the defendant as a product of his own demise.

An assistant district attorney in Houston argued on behalf of Texas. He suggested that “absent invocation” of the right to silence, refusing to answer a question can be used as evidence against a defendant’s innocence. The federal government supported this view, suggesting that Minnesota v. Murphy [opinion] holds as “the general rule that the Fifth Amendment privilege is not self-executing and that a suspect must invoke it in order to claim its protection to a noncustodial interview in.” Justice Sonia Sotomayor seemed skeptical of this argument: “That is such a radical position, that silence is an admission of guilty. That’s really what the argument is. I certainly understand that speaking can implicate you, and if you choose to speak, clearly whatever you say can be used against you unless you’re in custody and unless you’ve invoke the right before. But this is radically different. … [Y]ou’re trying to say acts of commission and omission are the same, but statements are different than silence, because then you’re making the person who is asking the question your—your admission. You are saying you’re adopting their statement as true.”

The court also heard arguments in United States v. Kebodeaux [transcript, PDF] on whether the federal government can compel a convicted sex offender to register with the Sex Offender Registration and Notification Act of 2006 (SORNA) [text] if they have completed their sentence before SORNA [JURIST news archive] was enacted. The deputy Solicitor General argued that “Nothing in Article I prevents Congress from legislating retroactively with respect to civil remedies for past violations of Federal law. The Ex Post Facto Clause, the Due Process Clause, and Article I analysis under the Necessary and Proper Clause all provide some degree of protection against retroactive provisions, but no per se rule bars Congress from applying sex offender registration requirements, which this Court has held to be civil remedies not barred by the Ex Post Facto Clause to past Federal criminal convictions.” An attorney on behalf of Anthony James Kebodeaux argued that the situation should be analyzed under the five factors in United States v. Comstock [JURIST report]. She also argued that under “necessary and proper” analysis, the government’s requirement of registration here is beyond the scope of that power. “I don’t see any problem with them giving notice. That does not impose a Federal obligation on an individual. So there is no power being exerted on the individual.”