Amicus curiae brief of the National Association of Criminal Defense Lawyer in support of the petition for certiorari.

Argument: In the case below, the Texas Court of Criminal Appeals held that the Fifth Amendment right against self-incrimination does not apply to pre-arrest, pre-Miranda silence, and therefore such silence in response to police questioning was admissible as evidence of guilt.

If a defendant’s pre-arrest silence in the face of police questioning may be admitted as evidence of guilt, the defendant faces a “cruel trilemma.” He can answer the police questions truthfully, possibly incriminating himself. He can lie to law enforcement, itself often a crime.3 Or he can remain silent and risk that his silence will be used against him as evidence of his guilt. The privilege against self-incrimination would be hollow if its exercise could be taken as equivalent to a confession of guilt.