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The United States Supreme Court issued a pair of decisions today that directly address two important provisions of the U. S. Constitution.  The opinions issued were overshadowed by the Court’s decision in the Arizona voting law case, which garnered the overwhelming majority of media attention.

Buried in that news cycle however were two important Supreme Court cases addressing the Constitution.  The first, Alleyne v. United States, overruled Harris v. United States, which was decided only eleven years ago.  In Alleyne, the Court decided by a 7-2 majority that any fact which, if proven, will have the effect of increasing the statutory minimum range to which the accused is subject, must be submitted to the fact finder and proved.  In other words, any fact or facts that will increase the statutory minimum implicates that Sixth Amendment.

For Federal practitioners, I do not see this as an opening to a fundamental change in the sentencing process.  The facts and issues generally regarded as sentencing factors that may increase the punishment within the prescribed statutory range will still be considered by the sentencing judge at sentencing and may be found reliable with a jury finding and proof beyond a reasonable doubt.  The Alleyne case does not appear, for example, to affect a sentencing court finding that the defendant acted as an Organizer, Manager or Leader, or that the defendant Obstructed Justice. 

The other case decided on June 17, 2013 is Salinas v. Texas.  Here,  the Court held that a prosecutor’s comment about the defendant’s pre arrest silence did not violate the Fifth Amendment privilege against self incrimination.  The opinion created a five person majority but only a three justice plurality opinion, with two justices  (Scalia and Thomas) signing onto concurring opinion. The rationale of the two opinions differed but five agreed with the result.  The three justice plurality opinion concluded that Salinas was precluded from arguing that the prosecutor’s trial comments were improper because he did not invoke his right to remain silent.    Scalia  and Thomas went so far as to say that even the  invocation of the right would be ineffective because, in their view, the Fifth Amendment affords no protection to a suspect during a pre custody interview.

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