The American Constitution created an adversarial criminal justice system. A basic feature of this system is that the accused cannot be compelled to give evidence in a criminal proceeding. However, should the accused elect to testify, he is subject to cross-examination by the prosecution. This case concerns the interaction between government agents and citizens prior to trial and prior to any arrest. In this case, police questioned Genovevo Salinas about a double murder. At first, Salinas answered the questions posed, but then decided to stop cooperating and remain silent. Later, at his trial, the prosecutor told the jury that Salinas’s refusal to answer questions was evidence of his guilt. The question before the Supreme Court is whether such prosecutorial comments about an accused’s silence can be used in court. The Supreme Court has already held that it is improper for prosecutors to comment on a defendant’s decision not to testify during his trial. The Supreme Court has also held that it is improper to comment on an accused’s silence after he has been placed under arrest. The question in this case is whether it is improper for prosecutors to comment on a suspect’s silence prior to formal arrest. For several reasons, the Cato amicus brief argues that prosecutors should not be able to comment on a citizen’s silence at trial. First, under our adversarial system, the government must investigate its own case, find its own witnesses, and prove its own facts. That means citizens can (in the absence of a subpoena) choose to cooperate with police fully, partly, or not at all. Second, silence is not evidence of guilt. Thus, there is no valid reason to support the government’s bid for admissibility (at least in the prosecution’s case-in-chief). Third, a contrary ruling would complicate the law and confuse citizens about when they can remain silent in the face of police questioning.
Featuring Mike German, Senior Policy Counsel, American Civil Liberties Union; Eileen Larence, Director of Homeland Security and Justice Issues, Government Accountability Office; Michael Price, Counsel, Liberty & National Security Program, Brennan Center for Justice; and Jim Harper, Director of Information Policy Studies, Cato Institute.
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