The Incriminating Sound of Silence: a Need for Protection of Post-arrest, Pre-miranda Silence

• Jurisdiction: United States,Federal
• Citation: Vol. 100
• Publication year: 2021

100 Nebraska L. Rev. 524. The Incriminating Sound of Silence: A Need for Protection of Post-Arrest, Pre-Miranda Silence

The Incriminating Sound of Silence: A Need for Protection of Post-Arrest, Pre-Miranda Silence

COMMENT ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 525

II. Historical Origins of the Right To Remain Silent ...... 526

III. Silence Prior to Miranda Warnings .................... 530
A. Pre-Arrest Silence as Substantive Evidence of Guilt ........................................... 530
B. Post-Arrest, Pre-Miranda Silence for Impeachment Purposes .......................................... 532

IV. Circuit Court Split: Post-Arrest, Pre-Miranda Silence as Evidence of Guilt ..................................... 533
A. Circuit Courts Allowing Use of Post-Arrest, Pre-Miranda Silence as Evidence of Guilt .............. 533
B. Circuit Courts Prohibiting Use of Post-Arrest, Pre-Miranda Silence as Evidence of Guilt .............. 535

V. Analysis .............................................. 538
A. Miranda as a Mere Reminder ..................... 539
B. Silence as Compulsion ............................. 541
C. Policy Justifications for Prohibiting Post-Arrest, Pre-Miranda Silence in the Prosecution's Case-in-Chief .............................................. 543
D. The Confusion of Berghuis v. Thompkins on Post-Arrest, Pre-Miranda Silence ....................... 545

VI. Conclusion ............................................ 548

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I. INTRODUCTION

The right to remain silent is a well-known constitutional right in the United States, in large part because of the pervasive presence of Miranda warnings in crime dramas on television and in the media. ^[1] However, it is unlikely that the average lay person's understanding of the right to remain silent extends much beyond a general awareness that it exists. Some of the not-so-obvious aspects of the right to silence include its purpose-particularly, to facilitate the privilege against self-incrimination ^[2] -and its protections, including the right to not have that silence used against the individual at trial. ^[3] One of the biggest complexities of the right to remain silent, troubling lay persons as well as experienced attorneys, is determining when the right is activated.

It is apparent that defendants have the right to remain silent once they are informed of their Miranda rights because the right is expressly stated in the warnings. However, the clarity disappears when discussing silence prior to Miranda warnings. Federal circuit courts have faced the issue of post-arrest, pre-Miranda silence for decades yet continue to diverge sharply in their opinions. ^[4] Some, like the Eighth Circuit, take a restrictive view of the right to remain silent, and the Fifth Amendment in general, and permit the prosecution to use evidence of a defendant's post-arrest, pre-Miranda silence in any way it chooses-including to prove the defendant's guilt. ^[5] Other circuits, reading the Fifth Amendment broadly, find that the right to remain silent begins as early as arrest. As a result, these circuits forbid the prosecution from using post-arrest, pre-Miranda silence during its case-in-chief because such use would violate the defendant's Fifth Amendment rights. ^[6]

The divide among circuit courts is particularly problematic because of its substantial effect on criminal defendants. For instance, the current lack of consistency prevents arrestees from knowing how to protect their innocence at the time of arrest. Courts should consistently apply constitutional rules throughout the United States. The rules regarding the right to remain silent are constitutional because the right stems from the Fifth Amendment's privilege against self-incrimination, and thus, courts must uniformly apply the right to remain silent.

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This Comment will argue that a defendant's right to remain silent under the Fifth Amendment includes silence occurring after arrest but before receipt of the Miranda warnings. The Supreme Court should grant certiorari to definitively resolve this circuit split and prevent the further violation of defendants' rights by prosecutors' use of post-arrest, pre-Miranda silence to prove guilt. Part II of this Comment will provide an overview of the source and creation of the Fifth Amendment's Self-Incrimination Clause and the development of the right to silence prior to Miranda v. Arizona in 1966. Part III will discuss the two types of pre-Miranda silence that the Supreme Court has addressed. The first type permits pre-arrest silence to be used as substantive evidence of guilt and, consequently, to impeach a defendant. The second type permits post-arrest, pre-Miranda silence solely to impeach a defendant. Part IV will discuss the various viewpoints surrounding the circuit court split on the use of post-arrest, pre-Miranda silence during the prosecution's case-in-chief. Part V will argue that the right to remain silent encompasses post-arrest, pre-Miranda silence and, as a result, prevents the prosecution from using such silence as substantive evidence of guilt against defendants. Part VI will conclude with a discussion of Berghuis v. Thompkins and the issues that the Supreme Court's unclear opinion poses for the protection of post-arrest, pre-Miranda silence.

II. HISTORICAL ORIGINS OF THE RIGHT TO REMAIN SILENT

To understand the conflict surrounding the right to remain silent, it is necessary to examine the roots of the privilege against self-incrimination, starting when the conflict arose centuries ago in England and culminating with the United States Supreme Court's decision in Miranda v. Arizona. ^[7] Some scholars argue that the theory against self-incrimination, and in turn the right to remain silent, was established in English ecclesiastical courts. ^[8] Ecclesiastical courts in England operated on the inquisitorial system of justice beginning as early as the thirteenth century. ^[9] The inquisitorial system is unique in comparison to English and American courts today because it forced

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criminal defendants to self-incriminate. ^[10] To facilitate this practice, ecclesiastical courts administered the oath ex officio, which compelled defendants to answer questions fully and truthfully and, therefore, to admit culpability. ^[11] Alleged wrongdoers could not, without severe repercussions, refuse to take the oath. ^[12] This produced a "cruel trilemma" of sorts when alleged wrongdoers were confronted with the oath because their only options were to (1) tell the truth and incriminate themselves; (2) lie and be accused of perjury; or (3) stay silent and be punished with a presumption of guilt-or worse, be killed. ^[13]

In response to the introduction of the oath and its severe consequences, advocates for another system of law enforcement, the accusatorial system, quickly grew in number. ^[14] Accusatorial criminal justice focuses on testimony by witnesses as opposed to testimony exclusively by the accused. ^[15] Arguments in favor of an accusatorial system were spearheaded by an opposition to the oath ex officio and premised on the maxim nemo tenetur prodere seipsum, meaning no man is bound to accuse himself. ^[16]

Despite consistent protests, the inquisitorial system and the oath ex officio continued to dominate criminal justice in ecclesiastical courts. ^[17] It was not until the seventeenth century that accusatorial system advocates in England gained some headway. In 1637, John Lilburne asserted the privilege against self-incrimination as a defense in his criminal trial after refusing to take the oath. ^[18] Lilburne, a fierce advocate for the accusatorial system, claimed throughout his proceedings that "no man's conscience ought to be racked by oaths imposed, to

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answer to questions concerning himself in matters criminal, or pretended to be so." ^[19] Lilburne's trial sparked Parliament's eradication of the oath and the recognition of the privilege against self-incrimination in English ecclesiastical and common law courts. ^[20]

Acceptance of the principle that no man should be bound to accuse himself made its way to the colonies. In 1791, Congress incorporated this principle into the United States Constitution by way of the Fifth Amendment's Self-Incrimination Clause. ^[21] The Fifth Amendment reads in part: "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." ^[22] The primary evil the Framers intended to prevent was the encroachment on civil liberties, particularly the use of torture to coerce criminal confessions. ^[23] Although not explicit, the exclusion of involuntary confessions was grounded in the choice to enforce criminal laws under an accusatorial system-"a system in which the State must establish guilt by evidence independently and freely secured." ^[24]

Despite the clear source of the Fifth Amendment's Self-Incrimination Clause, ambiguity has continually surrounded its application. A discussion of two landmark cases will help to lay a foundation for why the right to remain silent exists at the time of arrest, regardless of the receipt of Miranda warnings, and thus prevents the use of post-arrest, pre-Miranda silence as substantive evidence of guilt. ^[25] The Fifth Amendment has always encompassed the right to refuse to testify against oneself at trial. However, the consequence...