March 2009, Page 14

To Speak or Not to Speak: Can Pre-Miranda Silence be Used as Substantive Evidence of Guilt
By Christopher Macchiaroli

On June 13, 1966, the U.S. Supreme Court issued its decision in Miranda v. Arizona.1 Like a tidal wave, Miranda changed the manner in which custodial interrogations were to take place in America. As a result of Miranda, any suspect taken into custody and subject to interrogation was required to receive warnings of his or her constitutional rights.2 These warnings — now prominently known as “Miranda warnings” — were considered necessary in order to remedy the improper conduct of law enforcement officers during custodial interrogations. As described in police training manuals, such conduct was bent on creating an atmosphere suggesting “the invincibility of the forces of the law,”3 where interrogations would last for “several hours[,] pausing only for the subject’s necessities in order to avoid a charge of duress.”4 To highlight isolation and unfamiliar surroundings, manuals instructed law enforcement officers “to display an air of confidence in the suspect’s guilt,” and to maintain an appearance of only being interested in incriminating details.5 For the accused, “no respite from the atmosphere of domination was to be permitted.”6

The Supreme Court’s decision in Miranda was met with outrage, opposition, and upheaval from the law enforcement community, Congress, and even fellow justices on the bench. As a result, over time, Miranda’s holding was chipped away, undermined, and diminished by subsequent Supreme Court cases. In the end — even after a failed legislative attempt to overturn the decision — Miranda became “part of our national culture” and was here to stay.

The full scope of rights protected by Miranda is still a matter of debate. One issue still unresolved is whether a defendant’s pre-Miranda silence is admissible as substantive evidence of guilt. This issue considers the role Miranda plays in protecting a criminal defendant’s constitutional right against self-incrimination.7 While a majority of federal courts consider pre-arrest, pre-Miranda silence to be admissible as substantive evidence of guilt, a significant circuit court split exists as to whether post-arrest, pre-Miranda silence is equally admissible. This article summarizes the constitutional debate surrounding pre-Miranda silence and analyzes the legal reasoning supporting the respective positions.

I. Historical Background
A. Miranda v. Arizona
In Miranda v. Arizona, Chief Justice Earl Warren — himself a former district attorney and state attorney general8 — found that Ernesto Miranda had been subjected to questioning “in a police-dominated atmosphere …, cut off from the outside world … without full warnings of [his] constitutional rights.”9 In overturning his conviction,10 the Supreme Court held that a person in custody subjected to interrogation must be:
informed in clear and unequivocal terms that he has the right to remain silent [, … ] that anything said can and will be used against the individual in court


[, … ] that he has the right to consult with a lawyer and to have the lawyer with him during interrogation [ … , and] that if he is indigent a lawyer will be appointed to represent him.11


To the extent a person in custody indicated “in any manner, at any time prior to or during questioning, that he wish[ed] to remain silent,” the Supreme Court instructed that “the interrogation must cease.”12

Justice Harlan (joined by Justices Stewart and White) considered the Miranda decision to represent “poor constitutional law” that would “entail[] harmful consequences for the country at large” — the seriousness of which “only time [would] tell.”13 In a separate dissent, Justice Clark believed that the decision went “too far too fast” and instead recommended that in “the absence of warnings, the burden would be on the state to prove that in the “totality of the circumstances, [a] … confession was clearly voluntary.”14

President Nixon and Congress felt the “totality of the circumstances” test recommended by Justice Clark was the proper balance between the rights of the accused and the needs of law enforcement.15 The Crime Control and Safe Streets Act of 1968 (the “Act”) attempted to restore this test.16 The constitutionality of the Act was not ruled upon until nearly 30 years later in Dickerson v. United States.17 In Dickerson, Chief Justice William H. Rehnquist — while not believing that Miranda warnings were constitutionally required — overturned the Act, and held that the “warnings ha[d] become part of our national culture.”18

While acknowledging Miranda’s accepted place in American society, the Burger and Rehnquist Courts, over three decades, at best acquiesced in — and at worst consciously participated in — the undermining of Miranda. In decisions post-dating Miranda, the Supreme Court: (1) held that a confession improperly obtained in violation of Miranda could be used for impeachment purposes;19 (2) narrowed the circumstances in which Miranda warnings were required;20 (3) created a public safety “exigent circumstances” exception to Miranda warnings;21 and (4) adopted a broad interpretation of what constitutes a “voluntary” waiver of Miranda warnings.22

Impatient with the slow erosion of Miranda, law enforcement officers sought to find exceptions around Miranda’s requirements. One common practice was the deliberate withholding of Miranda warnings until a confession had first been obtained.23 After warnings were given, interrogators would then obtain the same previously inadmissible confession.24 In 2004, in Missouri v. Seibert, the Supreme Court halted this practice. Justice Souter explained that “[s]trategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute.”25 This article focuses on the role Miranda places in protecting a defendant’s right against self-incrimination.

B. Miranda and the Right Against Self-Incrimination
Prior to issuing its decision in Miranda, the Supreme Court held one year earlier in Griffin v. California that “comment[ing] on the refusal to testify is a remnant of the inquisitorial system of criminal justice, which the Fifth Amendment outlaws.”26 Subsequent to Miranda, in Doyle v. Ohio, the Supreme Court held that it was fundamentally unfair to induce a defendant to remain silent through Miranda warnings and then penalize a defendant who relies on those warnings.27

The Supreme Court’s holding in Doyle was weakened by subsequent decisions in Jenkins v. Anderson28 and Fletcher v. Weir.29 In Jenkins, the Supreme Court found impeachment by pre-arrest, pre-Miranda silence not to violate a defendant’s right against self-incrimination.30 The Supreme Court explained that once a defendant has voluntarily taken the stand, the privilege against self-incrimination — which protects a defendant’s decision whether or not to testify — “cannot be construed to include the right to commit perjury.”31 The Supreme Court explained that “[i]n determining whether a constitutional right has been burdened impermissibly,” it is “appropriate to consider the legitimacy of the challenged governmental practice.”32 In applying that test, the Supreme Court found impeachment to “enhance the reliability of the criminal process” by giving prosecutors the opportunity to appropriately “test a defendant’s credibility.”33 Similarly, in Fletcher, the Supreme Court extended its holding in Jenkins to apply to post-arrest, pre-Miranda silence.34

Doyle and its progeny left open the question whether a prosecutor can use a defendant’s pre-Miranda silence as substantive evidence of guilt. On April 14, 2008, the Supreme Court denied certiorari in a case that could have resolved the issue.35 As it currently stands, the Fourth, Eighth, and Eleventh Circuits permit the prosecution to use any pre-Miranda silence as substantive evidence of guilt. The Ninth and D.C. Circuits prohibit the use of post-arrest, pre-Miranda silence as substantive evidence of guilt, but permit the use of pre-arrest, pre-Miranda silence for that same purpose. The Second Circuit — while never expressly taking a position on the issue — interprets the U.S. Constitution as likely not permitting the government to introduce evidence of a criminal defendant’s pre-Miranda silence. The Fifth Circuit, while permitting the use of pre-arrest, pre-Miranda silence as substantive evidence of guilt, refuses to take a position on the admissibility of post-arrest, pre-Miranda silence. Finally, the First, Sixth, Seventh, and Tenth Circuits have prohibited the prosecution from using any pre-Miranda silence as substantive evidence of guilt. The positions are summarized in Table 1.

This article seeks to undertake the analysis the Supreme Court would have performed had it chose to resolve this constitutional issue.

II. The Use of Pre-Miranda Silence as Substantive Evidence of Guilt Violates The Fifth Amendment Privilege Against Self-Incrimination
As discussed above, while the Ninth and D.C. Circuits have all held that the government’s use of post-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination, the Seventh, Sixth, First, and Tenth Circuits have extended that holding to any silence by a defendant, including pre-arrest silence.

A. Ninth Circuit
The Ninth Circuit’s decision in United States v. Velarde-Gomez (“Velarde”) provides an excellent summary of prior Supreme Court precedent on the subject, addresses novel arguments raised by the government in support of admitting such testimony, and contains well-reasoned legal analysis in support of its decision.43

In Velarde, the prosecutor solicited testimony from a border agent regarding the defendant’s responsiveness when confronted with accusations that he was attempting to transport illegal substances into the United States.44 In describing the defendant’s responsiveness, the border agent testified as follows:
Q: And what was his response when you told him there was marijuana found in the vehicle?
A: There was no response. He didn’t look surprised or upset or whatever.
Q: So he just sat there?
A: Yes.
Q: Did he say anything?
A: No.
Q: Did he deny knowledge?
A: No.45
In examining the issue, the Ninth Circuit summarized the following principles from prior Supreme Court precedent: First, the government may not burden an individual’s right to remain silent by commenting at trial on the defendant’s post-arrest silence;46 Second, it is a deprivation of due process to allow an “arrested person’s silence to be used to impeach an explanation subsequently offered at trial;”47 and Third, while the government may not use a defendant’s pre-Miranda silence in its case-in-chief, it may use such silence for impeachment purposes.48 Relying on these principles, the Ninth Circuit overturned Velarde’s conviction. In doing so, the Ninth Circuit relied on its prior decision in United States v. Whitehead.49

In both Whitehead and Velarde, the defendants: (1) were apprehended at the border attempting to import marijuana into the United States;50 (2) were taken into custody for the purposes of Miranda;51 (3) remained silent while in custody;52 and (4) had an adverse inference drawn from their silence at their respective trials.53 The Ninth Circuit previously held in Whitehead that “regardless whether the Miranda warnings [are] actually given, comment on the defendant’s exercise of his right to remain silent [is] unconstitutional.”54 The prosecution sought to distinguish the facts in Velarde from those in Whitehead on the grounds that the bulk of the government’s evidence was not evidence of silence, but evidence of demeanor. Moreover, even if the testimony was evidence of silence, Velarde waived his right to the use of that silence when he later waived his Miranda rights.55

The Ninth Circuit disagreed and refused to place any “constitutional significance on the government’s post-hoc characterization of the evidence” as demeanor evidence.56 Moreover, given that the arresting officer testified that Velarde “just sat there” when questioned, the Ninth Circuit found the abstention from speech not to constitute a physical response sufficient to constitute “demeanor evidence.”57 Relying on the First Circuit’s opinion in United States v. Elkins,58 the Ninth Circuit held that admitting evidence of a defendant’s non-responsiveness as demeanor evidence was a “derogation of the Fifth and Fourteenth Amendments.”59

On the waiver issue, the government contended that “any passing reference the prosecution made regarding Velarde’s silence could not have been construed as a comment on his right to remain silent because Velarde’s post-Miranda waiver also waived his silence prior to receiving Miranda warnings.”60 In rejecting the government’s argument, the Ninth Circuit relied on the Supreme Court’s decision in Oregon v. Elstad.61 In Elstad, the Supreme Court held that although the failure to immediately administer Miranda warnings did not “taint” the admissions made after the defendant received and waived his Miranda rights, the pre-Miranda statement had to be excluded.62 The Court reasoned that:


the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case-in-chief. No further purpose is served by imputing “taint” to subsequent statements obtained pursuant to a voluntary and knowing waiver.63


The Ninth Circuit held that “statements made before the receipt of Miranda warnings remain inadmissible, despite a later waiver of Fifth Amendment rights.”64 Having found the district court erroneously admitted post-arrest pre-Miranda silence, the Ninth Circuit was required to then determine whether that error was harmless.

In evaluating whether the prosecutor’s reference to silence was harmless or not, the Ninth Circuit considers three factors: “[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.”65 Upon consideration of the so-called Newman factors, the Ninth Circuit concluded that the government failed to meet its burden that the district court’s error was harmless.66 First, special emphasis was placed on defendant’s silence during both direct examination and closing argument.67 Second, the government “used the testimony about Velarde’s silence as its principal means of meeting its burden on the critical element of knowledge.”68 Third, as the government conceded, it lacked direct evidence of guilt and had to rely extensively upon circumstantial evidence in order to convict Velarde.69 All of these factors supported the Ninth Circuit’s finding that the district court’s error was not harmless.

B. D.C. Circuit
In United States v. Moore, the police pulled over three passengers in a car that had passed through multiple red lights.85 Two of the passengers were wearing empty shoulder holsters and bulletproof vests, and their vehicle was filled with multiple bullet holes. 86 After the owner and driver of the car agreed that the vehicle could be searched, officers discovered a “loaded 9 mm semiautomatic pistol, a loaded .45-caliber semiautomatic pistol, a loaded .38-caliber revolver, a large quantity of cocaine, and a roll of duct tape in the engine compartment.”87 Post-conviction, the defendant who owned the car — among other claims — alleged that the prosecutor’s comment on his post-arrest silence was improper:

[D]uring closing argument, the prosecutor argued to the jury that if Moore didn’t know the stuff was underneath the hood, [he] would at least look surprised. [He] would at least [have] said, Well, I didn’t know it was there.88
Defense counsel objected to this line of argument.89 At a side bar, defendant’s counsel stated that she believed that the prosecutor “was improperly comment[ing] on post-arrest silence.”90 The prosecutor stated that he had not done so. The court agreed with defense counsel, but nevertheless overruled the objection.91

The D.C. Circuit found that the prosecutor’s reliance on Doyle v. Ohio was mistaken when “the Doyle Court noted that even the state does not suggest petitioners’ silence could be used as evidence of guilt,” but only as “was necessary for cross-examination and impeachment of petitioners’ exculpatory story.”92 The D.C. Circuit reasoned, “It simply cannot be the case that a citizen’s protection against self-incrimination only attaches when officers recite a certain litany of his rights.”93 As did the Seventh Circuit in Hernandez, the D.C. Circuit found that while “the prosecutor’s reference to Moore’s post-arrest silence was constitutionally improper,” it “was harmless beyond a reasonable doubt.”94

C. Seventh Circuit
The Seventh Circuit addressed the issue of pre-Miranda silence in United States ex. rel. Savory v. Lane and United States v. Hernandez.

In Savory, the prosecution presented evidence that when the accused was interviewed by the police, he told them he “didn’t want to make any statements.”70 Making no distinction between pre-arrest and post-arrest silence, the Seventh Circuit held that the “right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings.”71 The Seventh Circuit reasoned that because the defendant “did not take the stand,” Supreme Court precedent allowing the use of pre-Miranda silence for impeachment purposes was inapplicable.72

In Hernandez, the prosecution informed the defendant’s attorney on the morning of trial that it intended to use certain statements made by the defendant after he received his Miranda warnings.73 Focusing primarily on the post-Miranda statements, the district court sustained defense counsel’s objections and twice told the prosecutor to “go into another area.” 74 The prosecutor still wanted to proceed forward with his examination and asked the court if the prior question and answer were permitted.75 The aforementioned question was read into evidence, including the arresting officer’s “No” response.76 Defense counsel objected again and moved for a mistrial. The court denied his request for a mistrial, directed the prosecutor to move on, and let the admission stand. The prosecutor then asked, “What happened after that?” and elicited testimony previously excluded by the court.77 The court sustained the objection, telling the prosecutor again that he was not going to let him “elicit any of those statements.”78

The Seventh Circuit interpreted Doyle as barring any comment upon silence after Miranda warnings were given and interpreted Fletcher to permit the admissibility of pre-Miranda silence only for the purpose of impeaching the defendant’s testimony.79 As the prosecution sought to use the defendant’s silence as substantive evidence of guilt and not impeachment evidence, the Seventh Circuit found the trial court erred by admitting the testimony.80

The Seventh Circuit relied on its previous decision in Savory, even though factual distinctions existed between the two cases.81 Despite these differences, the Seventh Circuit rejected the government’s claim that because the defendant ultimately took the stand, the prosecutor was allowed “to introduce impeaching evidence in its case-in-chief.”82 According to Doyle, the Seventh Circuit stated that a “Miranda warning carries with it an implicit assurance that invocation of the right to remain silent will not be used against the person, even for impeachment.”83 Unlike the Ninth Circuit in Velarde, the Seventh Circuit in Hernandez — while finding the prosecutor’s questions to improperly invade the defendant’s constitutional rights — concluded that the admission of testimony regarding silence … “was harmless beyond a reasonable doubt.”84

D. Sixth Circuit
In Combs v. Coyle, officers were dispatched to the defendant’s residence after he had been shot. The officer arriving at the scene found Combs “sitting on the ground and holding a shotgun.”95 The officer then removed the shotgun from Combs and asked Combs what had happened, to which Combs replied, “The guy shot me.”96 The officer later repeated the same question as Combs was being placed into an ambulance, and Combs “told [the officer] to talk to his lawyer.”97 In closing argument, the prosecution stated:

Talk to my lawyer. Talk to my lawyer. Does that sound like someone who’s so intoxicated he doesn’t know what is going on? Isn’t that evidence that he realizes the gravity of the situation and at this time gave that particular comment or response to Officer Ventre?98

Although the statement by Combs referred not to his silence but to his right to an attorney, the Sixth Circuit held that “the admissibility of the statement [was] properly analyzed as a comment on pre-arrest silence.”99 His statement was “best understood as communicating a desire to remain silent outside the presence of an attorney.”100 Relying in part upon the First Circuit’s decision in Coppola v. Powell,101 the Sixth Circuit considered the privilege against self-incrimination not to be limited “to persons in custody or charged with a crime; [but … ] may also be asserted by a suspect who is questioned during the investigation of a crime.”102

Moreover, the Sixth Circuit relied upon the Supreme Court’s broad application of the scope of the privilege against self-incrimination in order to find protection for pre-arrest silence for instances where the declarant was in custody at the time he chose not to speak.103 Finding that Combs satisfied the standard for being in custody,104 the Sixth Circuit found the use of his statements at trial to have violated his privilege against self-incrimination.105

E. First Circuit
Instrumental to the Sixth Circuit’s holding in Combs v. Coyle — that the privilege against self-incrimination applies to pre-arrest silence in custodial settings — was the First Circuit’s decision in Coppola v. Powell.

In Coppolla, after the defendant became a subject of interest in an investigation, state and local police officers went to the defendant’s residence shortly after the crime had taken place.106 The officers questioned him that evening and, three days later, two state troopers returned and asked him if he would be willing to talk to them again. 107The defendant replied: “Let me tell you something. I’m not one of your country bumpkins. I grew up on the streets of Providence, Rhode Island. And if you think I’m going to confess to you, you’re crazy.”108 The defendant was arrested six weeks later, charged, and tried. He did not testify at his trial and was ultimately found guilty.109 During the trial, the district court allowed the trooper to testify as to what petitioner said, as well as to his “bragging tone of voice.”110

In analyzing whether the admission of the statement violated the privilege against self-incrimination, the First Circuit placed special emphasis on the fact “that immediately after making the statement and being told by the trooper that
‘I just want to give you your rights and then talk to you,’” the defendant said that “he would not talk to the police without a lawyer.”111 The First Circuit interpreted this statement as knowledge by the defendant that “he had a right to be represented by counsel at any interrogation.”112 Having “relied on the protection guaranteed by the Fifth Amendment,” the First Circuit found that the defendant’s constitutional rights were violated by the use of his statement in the prosecutor’s case-in-chief:113

In the case at bar, petitioner stated that he was not going to confess. He followed this with a statement that he would not answer any questions without a lawyer present. He did not later take the stand and offer an exculpatory story which his statement would impeach. Petitioner relied on the protection guaranteed by the Fifth Amendment from the first police interrogation through trial.114

In reviewing the evidence in the record, the First Circuit was not satisfied “beyond a reasonable doubt that the jury would have returned a verdict of guilty.” Therefore, the court vacated the conviction.115

F. Tenth Circuit
In United States v. Burson, the prosecution called two IRS agents during its case-in-chief. The agents testified that they went to the defendant’s residence in order to speak to him regarding an investigation into transactions with a third party.116 During the questioning, the agents decided to terminate the conversation and leave because they felt “it was apparent that [the accused] would not cooperate or answer any of [their] questions.”117 The prosecutor then asked both agents if Burson had ever responded to their questions concerning “his tax affairs.” Each agent replied “No.”118

The Tenth Circuit found the admission of the testimony to be plain error.119 From the testimony of the agents, the court found it was clear that the defendant was — through his actions — invoking his right to remain silent.120 In reaching its conclusion, the Tenth Circuit placed no significance on the fact that the defendant was not in custody when he was interrogated or that the defendant was not advised of his right to remain silent.121

III. Post-Arrest, Pre-Miranda Silence Is Admissible as Substantive Evidence of Guilt
The Fourth, Eighth, and Eleventh Circuits have all held that pre-Miranda silence can be used as substantive evidence of guilt during the prosecution’s case-in-chief.122

A. Fourth and Eleventh Circuits
In United States v. Love, three defendants sought a mistrial from their drug conspiracy conviction when the district court admitted testimony of a law enforcement agent concerning the defendants’ silence at the drug drop-off site on the night of their arrest.123 Similarly, in United States v. Rivera, the defendant also sought a mistrial “when the government was allowed to comment at trial on her silence after having been arrested and given her warnings[.]”124 On appeal, the Fourth and Eleventh Circuits interpreted the Supreme Court’s decision in Fletcher v. Weir as holding that “[t]he government may comment on a defendant’s silence when it occurs after arrest, but before Miranda warnings are given.”125

B. Eighth Circuit
In United States v. Frazier, the Eighth Circuit relied on United States v. Love and United States v. Rivera when affirming the admission of post-arrest, pre-Miranda silence as substantive evidence of guilt.126 In Frazier, the prosecutor elicited the following testimony:
A: [Officer]: I just told [him] that [he was] under arrest for suspicion of narcotics.
Q: What was Mr. Frazier’s reaction when you … placed him into custody?
A: There really wasn’t a reaction.
Q: Was he angry?
A: No, sir.
Q: Was he surprised?
A: No, sir.
Q: Did he become combative?
A: No, sir.
Q: Did he say anything to you?
A: No, sir.
Q: Did he do anything when you put the handcuffs on him?
A: No, sir.127

During the closing argument, the government placed special emphasis on Frazier’s conduct after his arrest as a factor indicative of guilt.128 Specifically, counsel stated: “If a person has a friend who betrays them, what’s the innocent person going to do when they discover they’re going to jail. Everybody else is back in Chicago. Are they going to become combative, angry, emotional, demanding?”129

In affirming the conviction, the Eighth Circuit reasoned that because law enforcement officers did not question the defendants, there was no compulsion to speak and their silence was therefore proper evidence of guilt at trial.130 The Eighth Circuit noted that there may be circumstances where compulsion may exist so as to warrant a finding that the use of post-arrest, pre-Miranda silence would be impermissible, but under the facts before the court, such comment on silence was permitted.131

In reaching its decision, the Eighth Circuit noted that the issue remained undecided and was the subject of a circuit court split.132 While relying upon the Fourth and Eleventh Circuit decisions in Love and Rivera in support of its decision, the Eighth Circuit at the same time undermined the reasoning of those decisions.133

As discussed above, Love and Rivera misinterpreted Fletcher as admitting post-arrest, pre-Miranda silence in all circumstances and not just for the purpose of impeachment. The Eighth Circuit in Frazier — consistent with courts prohibiting the use of post-arrest pre-Miranda silence — correctly interpreted Fletcher as being limited to circumstances where silence was admitted for “impeachment purposes.”134 Notwithstanding its correct reading of Fletcher, the Eighth Circuit would rather a criminal defendant in police custody have the Hobbesian choice of deciding to be a witness against himself, or say nothing at all and run the risk that his silence will do him greater harm. Moreover, the Eighth Circuit’s holding does nothing more than invite law enforcement officers to withhold the issuing of Miranda warnings in order to use any silence as evidence against the defendant at a subsequent trial.135

IV. Conclusion
The need for uniformity among the federal courts — especially on issues of constitutional law — is fundamental. As it currently stands, uniformity is lacking on the issue of whether pre-Miranda silence can be used as substantive evidence of guilt.

The Constitution protects the rights of individuals — once in custody — to either present evidence in their defense or to remain silent. To the extent silence is chosen, individuals accused of a crime should not fear that their silence will be used against them in a subsequent prosecution. It “simply cannot be the case that a citizen’s protection against self-incrimination only attaches when officers recite a certain litany of [] rights.”136 Under this scenario, the Miranda warnings would be relegated to words without meaning, rather than a summary of constitutional rights a criminal defendant already possesses prior to receiving notice of them.

The improper and impermissible conduct of law enforcement — which underlies the Supreme Court’s decision in Miranda — has not been completely removed from the criminal justice system. Only five years ago, in Missouri v. Seibert, the Supreme Court halted the practice of law enforcement officers obtaining a confession without Miranda warnings to only later obtain the same confession after Miranda warnings had been issued.137 Permitting the government to comment on post-arrest, pre-Miranda silence does nothing more than to invite law enforcement officers to delay the issuance of Miranda warnings in order to gain a perceived strategic advantage at trial. A clear unequivocal rule that post-arrest silence cannot be used as substantive evidence of guilt ensures that defendants are not manipulated into forfeiting their constitutional rights.

Moreover, the law enforcement community is not disadvantaged by such a rule. To the extent the defendant takes the stand, prosecutors still have every right to impeach a defendant’s testimony with pre-arrest silence. Our criminal justice system is served by requiring evidence of guilt beyond what was said — and more importantly in this case — what was not said. As discussed above, in the cases where silence was commented upon, ample concrete physical and testimonial evidence of guilt already existed. For example, in Whitehead and Velarde, drugs were found in the defendant’s car, and in Moore, the defendants were driving in a car containing automatic weapons and bullet holes while wearing bulletproof vests. The evidence of guilt was so overwhelming in these cases that the prosecutor’s improper use of silence was found to be harmless. The adoption of a clear standard provides guidance to the law enforcement community — similar to the Supreme Court’s decision in Miranda — as to what conduct is and is not constitutionally permissible.

As the Supreme Court expressed in Feldman v. United States, the constitutional right against self-incrimination was forged out of belief that a “free society should not be sacrificed” for the “unhampered enforcement of the criminal law.”138

Notes
1. 384 U.S. 436 (1966).
2. See, e.g., Colorado v. Connelly, 479 U.S. 157, 164 n.1 (1986) (listing and summarizing prior Supreme Court cases addressing improper custodial interrogations: Mincey v. Arizona, 437 U.S. 385 (1978) (interrogating defendant for four hours while he was incapacitated and sedated in an intensive-care unit); Greenwald v. Wisconsin, 390 U.S. 519 (1968) (interrogating defendant on medication for over 18 hours without food or sleep); Beecher v. Alabama, 389 U.S. 35 (1967) (holding gun to the head of wounded confessant to extract confession); Davis v. North Carolina, 384 U.S. 737 (1966) (engaging in coercive tactics and interrogating defendant for 16 days in a closed cell with limited food); Reck v. Pate, 367 U.S. 433 (1961) (interrogating defendant for four days with inadequate food and medical attention until confession was obtained); Culombe v. Connecticut, 367 U.S. 568 (1961) (employing coercive tactics while repeatedly questioning defendant for five days); Payne v. Arkansas, 356 U.S. 560 (1958) (holding defendant incommunicado for three days with little food and obtaining confession by informing defendant that chief of police was preparing to admit lynch mob into jail); Ashcraft v. Tennessee, 322 U.S. 143 (1944) (questioning defendant for 36 hours without an opportunity for sleep)).
3. 384 U.S. at 450.
4. Id. at 451.
5. Id. at 450.
6. Id. at 451.
7. See U.S. Const. amend V (“No person shall … be compelled in any criminal case to be a witness against himself”).
8. See generally Jim Newton, Justice for All: Earl Warren and the Nation He Made (2006).
9. 384 U.S. at 445.
10. In addition to Ernesto Miranda, multiple defendants were consolidated in one single appeal to the Supreme Court. Id. at 439. Interestingly enough, Thurgood Marshall, then Solicitor General for the United States and later Supreme Court justice, argued on behalf of the government in the consolidated case Westover v. United States that the federal government did not have the resources needed to provide an attorney to every person who needed one. See Michael Burgan, Miranda v. Arizona: The Rights of the Accused 48 (2006).
11. 384 U.S. at 473.
12. Id. at 473-74.
13. Id. at 504 (Harlan J., dissenting).
14. Id. at 501-03 (Clark, J., dissenting).
15. See Dickerson v. United States, 530 U.S. 428, 432 (2000) (“In the wake of [Miranda], Congress enacted 18 U.S.C. § 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made.”).
16. See 18 U.S.C. § 3501.
17. 530 U.S. at 431.
18. Id. (citation omitted).
19. See Harris v. New York, 401 U.S. 222, 225 (1971) (holding that credibility can be impeached by use of an earlier inadmissible conflicting statement and stating that the “shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances”).
20. See Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980) (finding police officer tactic of invoking the safety of nearby children while suspect was being taken away in police cruiser as a means of having the suspect confess where the gun was located did not constitute interrogation sufficient to trigger Miranda); id. at 305 (Marshall J., dissenting) (“I am utterly at a loss, however, to understand how this objective standard as applied to the facts before us can rationally lead to the conclusion that there was no interrogation.”).
21. See New York v. Quarles, 467 U.S. 649, 655-56 (1984) (“We hold that on these facts there is a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved.”).
22. See Connelly, 479 U.S. at 164 (finding mentally ill defendant to have knowingly waived his Miranda rights and holding that “[a]bsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law”).
23. See Missouri v. Seibert, 542 U.S. 600, 604 (2004).
24. Id.
25. Id. at 616.
26. 380 U.S. 609, 614 (1965) (citations and punctuation omitted).
27. 426 U.S. 610, 618 (1976).
28. 447 U.S. 231 (1980).
29. 455 U.S. 603 (1982).
30. 447 U.S. at 238-39.
31. Id. at 238 (quoting Harris, 401 U.S. at 225).
32. 447 U.S. at 238.
33. Id.
34. 455 U.S. at 607.
35. Franco v. United States, —- U.S. —-, 128 S. Ct. 1874 (2007) (denying writ of certiorari from the Fifth Circuit’s decision in United States v. Pando Franco, 503 F.3d 389 (2007). The government — concerned that the Supreme Court could hold that the Fifth Amendment prohibits the use of post-arrest, pre-Miranda silence as substantive evidence of guilt — argued in its opposition brief to certiorari that: (1) the issue was not ripe for appeal as it was not relevant to the Fifth Circuit’s decision; (2) downplayed the significance of certain circuit courts having prohibited the use of post-arrest, pre-Miranda silence as substantive evidence of guilt; and (3), in a footnote, attempted to argue that the First, Sixth, and Tenth Circuits really had not prohibited the use of pre-arrest silence as substantive evidence of guilt. See Brief for the United States in Opp’n to Certiorari, No. 07-893 at 7-9, n.2 (March 10, 2008).
36. In Caro, the Second Circuit — without issuing a definitive holding on post-arrest, pre-Miranda silence — stated that it was “not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the government’s case in chief.” 637 F.2d at 876.
37. See Pando Franco, 503 F.3d at 395 (5th Cir. 2007) (refusing to address the circuit court split given that the defendant waived his Miranda rights and preceded to discuss his prior silence during his custodial interrogation); United States v. Salinas, 480 F.3d 750, 758 n.8 (5th Cir. 2007) (expressly declining “to endorse the reasoning of the [Fifth Circuit’s] non-precedential opinion in” United States v. Garcia-Gil, 133 Fed. Appx. 102, 108 (5th Cir. 2005), which “reached a broad holding on the use of post-arrest silence by simply extrapolating from Zanabria’s narrow holding on the use of pre-arrest silence on specific facts.”) (citing United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (see also supra note 38).
38. See Salinas, 480 F.3d at 758 (citing Zanabria, 74 F.3d at 593) (“This court has previously held that a prosecutor’s reference to a non-testifying defendant’s pre-arrest silence does not violate the privilege against self-incrimination if the defendant’s silence is not induced by, or a response to, the actions of a government agent.”) (latter emphasis added).
39. See Savory v. Lane, 832 F.2d at 1017 (“In this respect, we believe Griffin remains unimpaired and applies equally to a defendant’s silence before trial, and indeed, even before arrest.”).
40. In Frazier, the Eighth Circuit left open the possibility that there may be circumstances where the existence of compulsion prohibits the use of post-arrest, pre-Miranda silence as substantive evidence of guilt. 408 F.3d at 1111.
41. Because the Ninth and D.C. Circuits interpret the right to remain silent only to attach when an individual is in custody, these circuits permit the prosecution to use pre-arrest, pre-Miranda silence as substantive evidence of guilt. See Velarde, 269 F.3d at 1029; Moore, 104 F.3d at 386.
42. Supra note 41.
43. 269 F.3d at 1028-30.
44. Id. at 1031.
45. Id. at 1027.
46. Id. at 1029 (citation and internal punctuation omitted).
47. Id. at 1029 (quoting Doyle, 426 U.S. at 618) (internal punctuation omitted).
48. Velarde, 269 F.3d at 1031 (citing Greer v. Miller, 483 U.S. 756, 762 (1987) (“‘absen[t] the sort of affirmative assurances embodied in the Miranda warnings,’ the Constitution does not prohibit the use of a defendant’s post-arrest silence to impeach him at trial”) (additional citations omitted).
49. 200 F.3d 634 (9th Cir. 2000).
50. Velarde, 269 F.3d at 1026; Whitehead, 269 F.3d at 637-38.
51. Velarde, 269 F.3d at 1026; Whitehead, 269 F.3d at 636-37.
52. Id.
53. Velarde, 269 F.3d at 1031; Whitehead, 269 F.3d at 638.
54. Velarde, 269 F.3d at 1030 (citing Whitehead, 269 F.3d at 638) (additional citations omitted).
55. Velarde, 269 F.3d at 1030.
56. Id. at 1031-32.
57. Id. at 1031.
58. 774 F.2d 530 (1st Cir. 1985).
59. Velarde, 269 F.3d at 1032 (citing Elkins, 774 F.2d at 536-38).
60. Id. at 1033.
61. 470 U.S. 298 (1985).
62. Id. at 318.
63. Id.
64. Velarde-Gomez, 269 F.3d at 1033 (citing Elstad, 470 U.S. at 318).
65. Id., 269 F.3d at 1034-35 (citation omitted).
66. Velarde-Gomez, 269 F.3d at 1036 (“Given that each of the Newman factors weighs against a finding of harmlessness, that the jury reasonably could have believed Velarde’s explanations, and the length of the jury deliberations, we hold that the admission of Velarde’s post-arrest, pre-Miranda silence was not harmless error.”).
67. Id.
68. 269 F.3d at 1035 (citation omitted).
69. Id.
70. 832 F.2d at 1015.
71. Id. at 1017.
72. Id. at 1017-18 (citing Fletcher, 455 U.S. at 605-06; Jenkins, 447 U.S. at 235-36, n.2).
73. 948 F.2d at 322 (objecting to the prosecutor’s first question — “When you approached Mr. Parrish and told him he was under arrest, did he say anything to you at that point?”).
74. Id.
75. Id.
76. Id.
77. Id.
78. Id.
79. Id. at 323 n.4 (citations omitted).
80. Id. at 323-24.
81. Id. at 323 (citing Savory, 832 F.2d at 1017-18).
82. 948 F.2d at 323.
83. Id. at 323, n.4.
84. Id. at 324.
85. 104 F.3d at 380.
86. Id.
87. Id.
88. Id. at 384 (internal punctuation omitted).
89. Id.
90. Id. at 389.
91. Id.
92. Id. at 386 (citation and punctuation omitted).
93. Id.
94. Id. at 391.
95. 205 F.3d at 278.
96. Id.
97. Id. at 278-79.
98. Id. at 279.
99. Id. (citing Wainwright v. Greenfield, 474 U.S. 284, 295 n.13 (1986) for the proposition that “[w]ith respect to post-Miranda warnings ‘silence,’ we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent as well as of a desire to remain silent until an attorney has been consulted”).
100. Combs, 205 F.3d at 279.
101. 878 F.2d at 1568.
102. Combs, 205 F.3d at 283 (citing Coppola, 878 F.2d at 1565).
103. See Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (explaining that the privilege against self-incrimination “can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used”) and Hoffman v. United States, 341 U.S. 479, 486 (1951) (“[The privilege] must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.”).
104. Combs, 205 F.3d at 284 (citing Stansbury v. California, 511 U.S. 318, 322 (1994) (“In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.’”) and United States v. Ozuna, 170 F.3d 654, 658 (6th Cir. 1999) (“Determination of whether an individual is in custody for purposes of applying the Miranda doctrine considers ‘how a reasonable man in the [individual’s] position would have understood the situation.”) (citations and punctuation omitted)).
105. Combs, 205 F.3d at 284 (“Having decided that the privilege against self-incrimination applies to a pre-arrest situation, an analysis such as the one employed by the Court in Jenkins leads us to the conclusion that the use of pre-arrest silence as substantive evidence of guilt is an impermissible burden upon the exercise of that privilege. First, permitting the use of silence in the government’s case-in-chief would substantially impair the policies behind the privilege.”) (citation omitted).
106. 878 F.2d at 1563.
107. Id.
108. Id.
109. Id.
110. Id. at 1564.
111. Id. at 1567.
112. Id.
113. Id. at 1568.
114. Id.
115. Id. at 1571.
116. 952 F.2d at 1200.
117. Id. (internal punctuation omitted).
118. Id.
119. Id. at 1201; see also id. at 1202 (finding the district court’s error to be harmless).
120. Id. at 1200 (citing Quinn v. United States, 349 U.S. 155, 162 (1955) for the proposition that “the invocation of the privilege against self-incrimination does not require any special combination of words”).
121. Burson, 952 F. 2d at 1200.
122. Love, 767 F.2d 1052; Frazier, 408 F.3d 1102; Rivera, 944 F.2d 1563.
123. Love, 767 F.2d at 1064.
124. Rivera, 944 F.2d at 1567.
125. Id. at 1568; see also Love, 767 F.2d at 1063 (reasoning that because neither defendants “had been given any Miranda warnings at the time Agent Hill observed their silence [,] … under Doyle and Fletcher Agent Hill’s testimony was properly admitted”).
126. 408 F.3d at 1111 (citing Rivera, 944 F.2d at 1567-68; Love, 767 F.2d at 1063); see also Note, Manipulating Miranda: United States v. Frazier and the Case-in-Chief Use of Post-Arrest, Pre-Miranda Silence, 92 Cornell L. Rev. 1013 (July 2007) (providing detailed analysis of issue through the lens of the Eight Circuit’s 2005 decision in United States v. Frazier); 2 Constitutional Rights of the Accused 3d § 6:38a, n.5.8 (1996, supp. 2008) (identifying relevant authority on issue) (citing Romantz, You Have the Right to Remain Silent: A Case for the Use of Silence as Substantive Proof of a Criminal Defendant’s Guilt, 38 Ind. L. Rev. 1 (2005); Hunter, The Man on the Stairs Who Wasn’t There: What Does a Defendant’s Pre-Arrest Silence Have to Do With Miranda, the Fifth Amendment or Due Process, 28 Hamline L. Rev. 277 (2005); Comment, The Silent Domino: Allowing Pre-Arrest Silence as Evidence of Guilt and the Possible Effect of Miranda, 37 Suffolk U.L. Rev. 189 (2004); Comment, Silence Should Be Golden: A Case Against the Use of a Defendant’s Post-Arrest Pre-Miranda Silence as Evidence of Guilt, 59 Okla. L. Rev. 357 (2006); Comment, Do You Have the Right to Remain Silent? The Substantive Use of Pre-Miranda Silence, 58 Ala. L. Rev. 903 (2007).
127. 408 F.3d at 1109.
128. Id.
129. Id.
130. Id. at 1111.
131. Id.
132. Id. at 1110-11.
133. Id. at 1111 (citing Rivera, 944 F.2d at 1567-68; Love, 767 F.2d at 1063).
134. Frazier, 408 F.3d at 1111.
135. Interestingly enough, in United States v. Suarez, 162 Fed. Appx. 897, 902 (11th Cir. 2006), the Eleventh Circuit: (1) affirmed its holding in United States v. Rivera, which held that post-arrest, pre-Miranda silence was admissible in the prosecution’s case-in-chief; (2) rejected the defendant’s citation of conflicting authority from the Ninth Circuit in Velarde as authority (see supra § IIA); and (3) relied on the Eighth Circuit’s opinion in Frazier as recognizing a circuit court split on the issue. Unfortunately, the Eleventh Circuit did not analyze the legal reasoning behind its prior jurisprudence, as it would have seen that Frazier — while relying upon the Eleventh Circuit’s decision in Rivera — actually undermines its legal reasoning.
136. Supra note 93.
137. 542 U.S. 600, 617 (2004).
138. 322 U.S. 487, 489 (1944).


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