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• Publication year: 2021

79 Nebraska L. Rev. 448.

448

Note* Craig W. Strong

A Contextual Framework for the Admissibility of a Criminal Defendant's Pre-Arrest Silence: United States v. Oplinger, 150 F.3d 1061 (9th Cir. 1998)(fn1)(

TABLE OF CONTENTS

I. Introduction................................... 449
II. Background..................................... 450
A. The Privilege Against Self-Incrimination.... 451
B. The Prosecution's Use of Silence............ 452
1. Impeachment.............................. 452
2. Substantive Evidence of Guilt............ 453
C. The Split in the Circuit Courts............. 454
1. Majority Opinion......................... 455
2. Minority Opinion......................... 455
III. Analysis....................................... 456
A. Pre-Arrest Silence is Not
Completely Privileged....................... 456
B. The Jenkins Decision
Improperly Extended......................... 458
C. Pre-Arrest Silence as Evidence of
Guilt is Contextual......................... 460
1. Context One:
Express Governmental Coercion............ 462
2. Context Two:
Implied Governmental Coercion............ 463
IV. Conclusion..................................... 464

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I. INTRODUCTION

Imagine that you are a federal prosecutor and the following case file is placed on your desk. Mayberry National Bank recently caught its security guard, Barney F., attempting to steal money from the back of an armored truck. Barney was caught by bank teller, Gomer P., who noticed Barney acting suspicious near the armored truck. Barney acted scared and agitated when confronted by Gomer. When Gomer asked Barney what he was doing, Barney never responded and maintained a deadpan reaction. Noticing money stuffed in Barney's slacks, Gomer immediately yelled `citizen's arrest, citizen's arrest!'

You intend to prosecute Barney for attempted bank robbery and would like to have Gomer testify regarding Barney's facial expression and response of silence when confronted. However, you happen to be a prosecutor in the Ninth Circuit and you have not read the recent Ninth Circuit case of United States v. Oplinger.(fn2) You are concerned that Gomer's testimony regarding Barney's silence may be inadmissible because it is privileged under the Fifth Amendment.

Up until United States v. Oplinger, the Ninth Circuit had never squarely addressed whether pre-arrest silence could be used as substantive evidence of guilt.(fn3) In United States v. Thompson,(fn4) the Ninth Circuit faced the issue but ultimately concluded that the lack of any controlling authority on the matter rendered the point too unclear to permit a finding of plain error.(fn5)

In Oplinger, however, the Ninth Circuit faced the issue again, this time reaching a decision on the merits. The Oplingercourt held that `[n]either due process, fundamental fairness, or any more explicit right contained in the Constitution is violated by the admission of the silence of a person, not in custody or under indictment in the face of accusations of criminal behavior.'(fn6)

The Ninth Circuit's holding in Oplinger is significant for several reasons: (1) the decision deadlocked the federal circuits (i.e., three to three) with respect to the issue of pre-arrest silence as substantive evidence of guilt;(fn7) (2) the court extensively analyzes the unique contextual surroundings of a defendant's pre-arrest silence;(fn8) and (3) the court's decision pushes the divergent circuit opinions surrounding pre

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arrest silence as substantive evidence to the point of `critical mass.'(fn9) In other words, the Oplinger opinion undoubtedly makes this issue overly ripe for Supreme Court review.

Part II reviews the history of the Fifth Amendment privilege against self-incrimination, how `silence' may be used by the prosecution, and the current split in the circuits regarding pre-arrest silence. Part III.A of this Note argues that there is neither a complete prohibition nor absolute permission to use pre-arrest silence as substantive evidence. Part III.B argues that the minority circuits have erroneously interpreted the Supreme Court's ruling in Jenkins v. Georgia and, as such, incorrectly concluded that pre-arrest silence should not be allowed as substantive evidence. Finally, Part III.C maintains that Oplinger was correctly decided because it properly applied the Fifth Amendment based upon the context of the coercion faced by the defendant.

II. BACKGROUND

William Oplinger was employed as a supply coordinator for a bank where he was responsible for the purchase and distribution of sup-plies.(fn10) Over a two-year period Oplinger engaged in a pattern of purchasing unnecessary office supplies and returning those supplies for cash refunds.(fn11) Oplinger would keep the cash for his own purposes and, over two years, he accumulated a total of $22,700.05 in refunds.(fn12)

On May 18, 1995, Oplinger's supervisor and another bank officer met with Oplinger and asked him what he had done with the money.(fn13) In response, Oplinger leaned back in his chair, placed his hands over his eyes and said he did not know.(fn14) Oplinger did not elaborate further even when he was informed that bank regulators and the Federal Bureau of Investigation (FBI) would have to be notified.(fn15)

Oplinger was ultimately convicted on twenty-one counts of bank fraud.(fn16) However, on appeal, Oplinger argued that the government violated his privilege against self-incrimination and his right to due process by unconstitutionally eliciting testimony regarding the May 18, 1995 meeting, and then by commenting on that testimony during

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its closing argument.(fn17) Oplinger claims he gave a partial answer to his supervisor when questioned regarding the refunded monies, but as soon as he became aware that his answers would be reported to the FBI, he chose to remain silent.(fn18) Oplinger claims that the prosecu-tor's reference to his `silence' was unconstitutional because `non-cus-todial, pre-arrest, and investigatory assertions' of the right to remain silent are protected by the Fifth Amendment privilege against selfincrimination and the right to due process.(fn19)

The Ninth Circuit affirmed Oplinger's conviction and rejected his argument that his pre-arrest silence was constitutionally protected by the Fifth Amendment.(fn20) In reaching its decision the Court noted that `the government made no effort to compel Oplinger to speak; he was free to act as he pleased.'(fn21)

A. The Privilege Against Self-Incrimination

The history of the modern privilege against self-incrimination can be divided roughly into three steps, each of them captured by its own distinctive formulation of the doctrine.(fn22) At the earliest stage, the privilege against self-incrimination was expressed in maxims like nemo tenetur seipsu accusare (`no one shall be required to accuse himself') and nemo tenetur prodere seipsum (`no one shall be required to betray himself').(fn23) The United States Constitution embodies the second stage formulation: no person `shall be compelled in any criminal case to be a witness against himself.'(fn24) At the third stage (the modern stage), the warning mandated by Miranda v. Arizona(fn25) expresses the general, though not universal, understanding of the privilege: you have the right to remain silent.(fn26)

When judging the effect of state action on the Fifth Amendment's privilege against self-incrimination, it is important to understand the purposes underlying the clause. In Murphy v. Waterfront Commis-sion,(fn27) the Supreme Court listed a number of reasons for the privilege. Three of those reasons are particularly appropriate in the context of pre-arrest silence: (1) the need to deter improper police behavior; (2)

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the need to protect the values of the adversary system; and (3) the need to protect the innocent from wrongful conviction.(fn28)

In 1966, the Supreme Court further interpreted the Fifth Amendment privilege against self-incrimination in Miranda v. Arizona.(fn29) The Miranda Court clarified that the Fifth Amendment privilege against self-incrimination provided an accused person the right to refuse to answer questions and remain silent when being interrogated during the investigation of a crime.(fn30) Specifically, the Court held that the prosecution could not use statements obtained during a custodial interrogation unless it demonstrated that certain procedural safeguards were present during questioning.(fn31) The Court concluded that without these safeguards, the custodial interrogation process contains inherently coercive pressures that serve to weaken the accused's ability to resist and to force the accused to speak against his or her free will.(fn32)

B. The Prosecution's Use of Silence

Although the Miranda decision established that an accused has the right to remain silent, it did not address whether the prosecution may use silence to imply that the defendant is guilty. Although the Supreme Court has never explicitly decided whether pre-arrest silence may be used to imply guilt, it has ruled that pre-arrest silence may be used to impeach a defendant's testimony.(fn33) However, the Supreme Court has also expressly held that the prosecution may not use postarrest silence(fn34) or the defendant's failure to take the stand to imply guilt.(fn35)

1.Impeachment

The Supreme Court has long justified impeachment on the ground that when a defendant chooses to testify, he waives his privilege

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against self-incrimination.(fn36) For example, the Supreme Court has stated that if a defendant waives the right to remain silent at trial, he `cannot then claim the privilege against cross-examination on matters reasonably related to subject matter on his direct examination.'(fn37) Likewise, the Court has allowed impeachment of the defendant with illegally seized evidence if the defendant opens the...