Orin Kerr posted an analysis of the Salinas case on volokh.com. A trenchant response followed from Jeffrey
Renz. To wit:
"Right and privilege have historical
connotations and so it is important to speak precisely about them. The
privilege against self-incrimination was recognized in common law and defined
as a right in the Fifth Amendment and the various states' bills of rights. The
scope of the right varies from state to state and depends on the language of
the constitutional provision. The privilege exists outside the various
constitutions, which brings me to the next set of comments: What would Freeborn
John Lilburn say?"
"Lilburn is widely recognized as the
source of what became the right and privilege to remain silent. The
significance of the Salinas decision is its willingness to restrict the
privilege to remain silent on the basis of the language of cases that went
before rather than to measure the right against what it was intended to
prevent. Now, John Lilburn offers us little solace on the language side, since
LIlburn was under arrest when he asserted his right to refuse to take the oath
ex officio mero. The oath was important at the time since it put the accused on
pain of damnation and because by taking it the accused agreed to answer all
questions truthfully. Although LIlburn was under arrest, his justifications for
refusing the oath ring true in Salinas. Lilburn argued that one should never be
compelled to accuse (note the distinction between accuse and incriminate and
"in criminal case. . . witness against") one's self. Lilburn saw the
effort to obtain a self-accusation as an immoral (and impractical) act by the
High Commission for Ecclesiastical cases sitting in the Star Chamber. So the
question in Salinas, the question that we must confront, is when does the
privilege become an enforceable right? The plurality in Salinas decided the
case on the basis of language. The dissent rested on purpose and language.
(Note, too, that the accused's silence is accepted as positive evidence of
guilt in many accusatorial/inquisitorial systems.) Had Salinas been
distributing religious tracts, the case might have come out differently. But he
was a burglar and that's a different breed of cat for many cases."
"I don't think Salinas will survive
its application. We'll see a proliferation of comments on pre-arrest silence at
trial. Every traffic stop, every one that goes to trial, will include a comment
by the prosecutor about the motorist's silence. Then there is the "oath ex
officio" in the United States. 18 USC 1001 criminalizes false statements,
including denials, to federal law enforcement officers (and other federal
officials.) The accused in a federal investigation then starts under an oath ex
officio. S/he will have four choices when asked about shotgun shells, insider
trading, or communications to a lending agency: confess, deny wrongdoing and be
charged with a violation of 18 USC 1001 (you can, by the way, tell the truth
and still be charged), remain silent and have that silence be used as proof at
trial, or assert the 5th amendment."
"Not a pretty picture."
