The sound of silence: evidentiary analyses of precustodial silence in light of Salinas v. Texas.

• Author: Mansour, Lukas

Table of Contents Introduction I. Background a. History and Purpose of the Fifth Amendment 1. Miranda v. Arizona 2. Use of Silence as Evidence: Impeachment and Substantive Use i. Impeachment Use of Precustodial Silence: Jenkins v. Anderson ii. Substantive Use of Precustodial Silence: Griffin v. California 3. Examining the Constitutional Approach to Precustodial Silence Further: Baxter v. Palmigiano b. Salinas v. Texas c. Salinas'. Thomas's Concurrence, Breyer's Dissent, and the Use of Constitutional Arguments 1. The Narrow Constitutional Approach 2. The Broad Constitutional Approach II. Analysis: Courts Should Use Evidentiary Analysis to Determine Admissibility of Precustodial Silence on a Case-by-Case Basis Conclusion INTRODUCTION

Imagine the following scenario: you are a young immigrant who recently came to the United States. (1) You have moved into a poor, crime-ridden neighborhood in New York City. You intend to stay, at least temporarily, because the cost of rent is low and other immigrants of your ethnicity live in the area. One Friday night, you are invited to an acquaintance's home to celebrate his twenty-fifth birthday. The party spirals out of control, and amidst the commotion, gunshots ring out in the house. You and the other guests quickly leave the premises.

The next morning, police officers knock on your door. They tell you someone at the party last night was murdered and want to question you about the incident as a "person of interest." They ask you to come to the police station for brief questioning. You oblige. You answer their questions until they ask you whether you saw anyone suspicious at the party. You think you saw someone you know carrying a gun, but you are unsure and you do not want to falsely implicate him. Furthermore, if word were to get out in the neighborhood that you are a snitch, it could cut you off from the only friends and network you have in this country. In response to this question, "you shuffle [] [your] feet, [bite your] bottom lip, [clench your] hands in [your] lap, and [begin] to tighten up." (2) The police questioning becomes increasingly persistent, and sweat breaks out on your forehead. You refuse to answer the question, and decide to leave the police station. Soon after, the police arrest you for the murder.

Can a prosecutor use your silence against you in the subsequent trial for murder? In Salinas v. Texas, the Court presumably sought to resolve this question when it certified the question presented as "whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant's precustodial (3) silence as evidence of his guilt." (4) In the plurality opinion written by Justice Alito, the Court declined to answer this question, instead rejecting Salinas's Fifth Amendment claim because he did not expressly invoke his Fifth Amendment right to remain silent. (5) The plurality held that Salinas was "required to assert the privilege in order to benefit from it." (6) Thus, because Salinas never said, "I have the right to remain silent," "I plead the Fifth," or some other combination of similar language during questioning and prior to being in police custody, he could not claim Fifth Amendment protections. (7)

The Fifth Amendment states that "no person ... shall be compelled in any criminal case to be a witness against himself ... The Supreme Court has held that this provision prohibits the prosecution from using a defendant's decision not to testify at trial as evidence of his guilt. (8) The Court has also held that the same provision applies to a defendant's choice to remain silent during a custodial interrogation. (9) But the Supreme Court has yet to provide guidance regarding the admissibility of precustodial silence, resulting in "a large gray area in the law." (10)

Justice Thomas's concurrence in Salinas criticized the plurality for failing to hold that precustodial silence is admissible for substantive use, meaning as evidence of a defendant's guilt. (11) Relying heavily on Fifth Amendment language and jurisprudence, Justice Thomas argued that Salinas's claim should fail "even if he had invoked the privilege" because the prosecutor's comments regarding Salinas's silence to the jury did not compel Salinas to give incriminating testimony. (12) Justice Thomas concluded Salinas did not have the constitutional right to not have his precustodial silence used against him at trial. (13) Lower courts often rely on approaches similar to Justice Thomas's constitutional reading when permitting a prosecutor to use a defendant's silence as substantive evidence of guilt at trial. (14)

Justice Breyer's Salinas dissent similarly relied on Fifth Amendment language and jurisprudence to reach a contrary conclusion. (15) Breyer argued that allowing a prosecutor to comment on a suspect's silence "would undermine the basic protection that the Fifth Amendment provides," and concluded that those in precustodial circumstances should not have to expressly invoke their Fifth Amendment rights. (16)

While the entire Salinas Court assessed the admissibility of precustodial silence from a constitutional standpoint, (17) this Comment instead examines the arguments from an evidentiary perspective. It explains the relevance of precustodial silence and its potential to have an unfairly prejudicial impact according to the Federal Rules of Evidence. Traditionally, courts have only alluded to this type of analysis. (18) Courts may use this evidentiary analysis to answer whether precustodial silence should be used as substantive evidence (19) of a person's guilt.

This Comment argues that courts should use an evidentiary analysis rather than a constitutional analysis and determine issues of precustodial silence admissibility on a case-by-case basis. When faced with a suspect's precustodial silence, courts should adhere to standard evidentiary law in determining whether a suspect's silence in a particular case is probative of guilt, (20) and if it is, weigh its probative value against the potential for unfair prejudice. (21) This Comment also provides support for the proposition that precustodial silence is rarely probative of guilt, and thus this Comment argues that a court's application of the aforementioned balancing test should usually result in the exclusion of such evidence.

Part I of this Comment provides background on the Fifth Amendment, including its application to precustodial and custodial settings. Additionally, Part I contains a brief description of what courts have termed a "custodial" setting, in which defendants have a Fifth Amendment right to not have their silence used against them, as established in Miranda. (22) Part I also examines the use of silence for both impeachment and substantive purposes, and considers how Salinas fits into this broader discussion. Finally, Part I describes the current method most courts use to determine the admissibility of precustodial silence: the constitutional approach.

Part II of this Comment discusses the evidentiary approach to admissibility of precustodial silence. It argues that while more research is needed, existing research indicates that silence should usually not be admitted as evidence because it is rarely relevant (i.e., not probative of guilt). Furthermore, even in rare instances where it is relevant, it is unfairly prejudicial. Thus, silence should rarely be admissible as substantive evidence of a suspect's guilt in a criminal trial.

1. BACKGROUND

   1. HISTORY AND PURPOSE OF THE FIFTH AMENDMENT

      The Fifth Amendment protects against abuses of governmental authority. (23) Courts have applied Fifth Amendment protections in many situations where individuals may incriminate themselves. Aside from finding that the Amendment protects one's right to not take the stand at ones own trial, courts have also extended this privilege against compelled self-incrimination to coercive situations (like custodial interrogations). (24)

      Examining the Framers' purpose when they drafted the Amendment is one way to better understand the privilege today. At least one scholar concludes that the "drafters of the Fifth Amendment never envisioned such a broad interpretation of the [Amendment's] language," especially in out-of-court terms. (25) The Framers certainly did not develop the Fifth Amendment for guilty people to mislead the justice system. (26) But to what extent is the Fifth Amendment intended to protect the innocent? One popular theory asserts that the Fifth Amendment is intended to uphold the values of the adversary system. (27) According to this line of reasoning, the prosecution should be forced to prove its case without any help from the defendant. (28)

      1. Miranda v. Arizona

         Other experts argue the Fifth Amendment is designed to deter police misconduct, like delaying formal arrest or the delivery of Miranda warnings. (29) A variety of similar actions may ensure that a defendant's silence is admissible. For example, since the early twentieth century, the Supreme Court has held inadmissible confessions obtained through torture or coercion. (30) Another primary theory is that the Fifth Amendment is meant to prevent individuals from facing the '"cruel trilemma' of incriminating himself, perjuring himself under oath, or being held in contempt of court by refusing to answer in an interrogation." (31)

         Frequent disputes over the Fifth Amendment's purpose and evolving case law have formed the "right to remain silent" as we know it today. (32) In the early twentieth century, the Supreme Court broadened the application of the Fifth Amendment, (33) paving the way for the landmark case Miranda v. Arizona. (34) In Miranda, the Court extended the Fifth Amendment privilege to custodial settings due to their coercive nature. (35) The Court stated that "the prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective...