Wait, you say, isn’t that exactly what the prosecutor can’t say if you really have the right to remain silent? What kind of right is it if exercising it will be used to make you look guilty? Which, in fact, is just what Justice Stephen Breyer and the other liberals asked in their dissent.
Yet Justice Samuel Alito — writing for plurality that included Chief Justice John Roberts and Justice Anthony Kennedy — said that because Salinas was there voluntarily and wasn’t in custody, he had to say the magic words, “I invoke my right to remain silent under the Fifth Amendment.” Because he didn’t, his words could be used against him.
There is something a little impractical about this holding. After all, we read suspects their Miranda rights because we figure they don’t always know to invoke them. Yet for Justice Thomas, even that apparent contradiction didn’t go far enough.
Writing a separate, decisive concurrence joined by Scalia, Thomas took the opportunity to re-express his view that the right not to be compelled to be a witness against yourself doesn’t include the right for the jury not to be told that your silence is evidence of guilt — ever. (Never mind that the Supreme Court has explicitly interpreted the self-incrimination right that way since 1965.)
At the founding, Justice Thomas noted, defendants were encouraged to make unsworn statements defending themselves, and their failure to do so could be mentioned at trial. Of course, he didn’t mention that at the time, defendants were also generally prohibited from testifying on their own behalf, lest they endanger their souls by perjury.
If criminal justice, or the rest of our constitutional, system, were actually turned back 225 years or so, the results would be so unfamiliar as to seem bizarrely un-American. Originalism is valuable because it reminds us that there are certain core values that we as a people have preserved throughout our history — not because we should stop using zippers and go back to a world of buttons.
That said, I have to admit that there is something inspiring about a justice who takes a principle to its logical end out of a sincerely held commitment, even if it makes him look ridiculous. So long as there aren’t four others who agree with him consistently.