Pre-arrest silence: minding that gap between Fourth Amendment stops and Fifth Amendment custody.

• Author: Ciarelli, Sara

1. INTRODUCTION

   The legal aftermath of the terrorist attacks on the United States on September 11, 2001 has raised countless issues regarding the rights of the criminally accused balanced against the government's interest in gathering intelligence and protecting the nation. (1) A recent incident involving airport security highlighted the tension between the attempt to heighten national security and a citizen's constitutional procedural protections. On July 29, 2002, Ali Khan, an American Muslim official, was detained in an airport for an hour and forty-five minutes because his name and physical description "was a close match" to a person on a no-fly list that the Transportation Security Administration had distributed to airlines. (2) After being questioned in front of other passengers, he was escorted to a private room where two Federal Bureau of Investigation ("FBI") agents informed him that he could cooperate "the easy way or the hard way." (3) Khan chose the "easy way," answered the FBI's questions, and was ultimately released. (4)

   Suppose Khan had preferred to cooperate the "hard way," by refusing to answer questions until he consulted with his lawyer. Many Americans perceive that the United States Constitution grants a "right to remain silent" (5) and, whether or not this notion is correct, (6) Khan's choice to take the hard way--to remain silent--could have potentially haunted him for the remainder of the government's case against him. (7) In many states and federal circuits, a prosecutor may convey to a jury, through cross-examination or closing argument, that in the period before a person is arrested and read his or her Miranda warnings, (8) a person's refusal to speak indicates his or her guilt. (9) This inference could weigh heavily in a juror's assessment of a defendant's guilt: had the FBI asked Khan questions about his identity and travel plans, and Khan refused to answer and was subsequently arrested and charged, a reasonable juror could easily infer that Khan must have been guilty or else he would have nothing to hide. (10)

   Such refusals to speak fall under the legal umbrella of "pre-arrest silence," because they involve a person suspected of committing a criminal act who chooses not to answer questions, but who has not yet been read his Miranda warnings. This comment will focus on the Fifth Amendment privilege against self-incrimination, its related "right to remain silent," and the period after a suspect's movement is restricted by the government, but before the suspect is formally arrested and read his or her Miranda rights. (11) It will argue that a suspect's reasonable state of mind should be considered in determining whether a suspect was compelled by law enforcement officers to speak, and thus whether a prosecutor may use evidence of pre-arrest silence. (12) Further, it will argue that this consideration should take into account the reality of police-citizen encounters, such as brief investigative detentions permitted under Fourth Amendment jurisprudence. (13)

   In Section II, this comment will provide a brief overview of the development of the Fifth Amendment, starting with its historical origins, continuing with its Warren Court expansion in Miranda v. Arizona, and ending with a brief discussion of its modern day parameters. In Section III, this comment will explain the most common arguments opposing and supporting the substantive use of pre-arrest silence. This section will begin by explaining the treatment of pre-arrest silence under the penalty doctrine put forth by Griffin v. California, (14) and then discuss the criticism of Griffin and the related arguments of why substantive use of pre-arrest silence should be permitted. In Section IV, this comment will discuss the analyses employed by the Courts of Appeals and state courts. This section attempts to illustrate how the decision as to whether pre-arrest silence should be admitted as substantive evidence relates to whether the court finds that an atmosphere existed in which a person would feel compelled to incriminate herself and whether the person was silent, invoking her Fifth Amendment rights, as a result of this atmosphere. In Section V, this comment will discuss a person's silence during non-arrest, police-citizen encounters, such as brief detentions, and how the intersection of the Fourth and Fifth Amendments create a mismatch between the law, the law's presumed intentions, and the psychological realities of these encounters. It will conclude by arguing that the definition of compulsion for the purposes of admitting or excluding pre-arrest silence should be broad enough to encompass pre-arrest police-citizen encounters, and that the suspect's reasonable state of mind should be considered.

2. A BRIEF HISTORY OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

   The Fifth Amendment of the United States Constitution states that "No person ... shall be compelled in any criminal case to be a witness against himself." (15) This clause is "an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights" because courts and scholars have been unable to define the proper scope of the privilege. (16) This is so because the historical roots of the Fifth Amendment have been glossed by the evolution of the law and the realities of modern law enforcement to the extent that courts ambiguously apply the privilege against self-incrimination, (17) This section will trace the development of the right to remain silent from its origins in England to its modern-day role in American society.

   1. ORIGINS: THE CRUEL TRILEMMA

      In tracing the origins of the clause, some scholars have viewed it as a relic from 17th century efforts to abolish the coercive questioning practices of Ecclesiastical Courts. (18) These courts would force the accused to take an oath and then face the "cruel trilemma" of incriminating himself, perjuring himself under oath, or being held in contempt of court by refusing to answer in an interrogation. (19) This compulsion to tell the truth was regarded as cruel because of the solemnity associated with the oath in the seventeenth and eighteenth centuries (20)--a solemnity that had the power to torture the spirit of the accused. (21)

      The Fifth Amendment was designed to protect the accused from this cruel trilemma. (22) Thus, many Fifth Amendment scholars and judges believe that the clause focused on improper methods of gaining information from criminal suspects rather than affording defendants a right to remain silent; (23) the fight "not to be compelled" did not mean the actual right to remain silent, but the right not to be forced to speak. (24)

   2. THE RIGHT TO REMAIN SILENT

      The privilege against self-incrimination transformed into an officially recognized fight to remain silent through the language of case law during the eighteenth and nineteenth centuries. (25) In the twentieth century, the Supreme Court commented on the broad values enveloped by the Fifth Amendment. (26) In Murphy v. Waterfront Commission, (27) the Court explained that the privilege against self-incrimination:

      reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a 'fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load'; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life'; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' (28) Under this broadened scope of Fifth Amendment rights, the Court projected "the right to remain silent" into the public lexicon (29) with Miranda v. Arizona. (30) The Court held that the prosecution must demonstrate the use of procedural safeguards effective to secure the privilege against self-incrimination. (31) Miranda, however, did not hold that the right to remain silent was encapsulated by the privilege against self-incrimination. (32) Rather, the phrase "right to remain silent" materialized in the Court's instruction as to what the procedural safeguards should include: "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent." (33) Because the Court never discussed the particular guarantees of the Fifth Amendment, but rather discussed the necessity of protecting it in general, the Fifth Amendment's inclusion of the right to remain silent seems to be assumed throughout the Court's opinion. (34)

   3. DEFINING THE SCOPE OF MIRANDA

      Consistent with the history of the Fifth Amendment, (35) "compulsion was a key element in Miranda." (36) Miranda asserted that compulsion was present in all cases of in-custody interrogation--"the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." (37) But the Court defined vague limits on what constituted custodial interrogation. (38) On the one hand, the Court stated, "[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (39) On the other hand, the Court noted that "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process is not affected by our...