Federal Evidence Review

Supreme Court agrees to hear case on whether the Fifth Amendment privilege against self-incrimination permits a defendant to refuse to answer a question posed by law enforcement prior to arrest or the advisement of Miranda rights; questions in the case will include whether silence can be used as substantive evidence, during closing argument, or for other purposes, in Salinas v. Texas, _ U.S. _ (No. 12-246)

On Friday, January 11, 2012, the Supreme Court granted certiorari review in a case concerning the scope of protection under the Fifth Amendment privilege against self-incrimination. The question presented is:

Whether or under what circumstances the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Prior Open Issue Noted

The Supreme Court had noted but left open this issue. See Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980) ("Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment."). The Supreme Court has held that after a defendant testifies, “the Fifth Amendment is not violated by the use of [a defendant’s] prearrest silence to impeach [his] credibility.” 447 U.S. at 238.

As noted below, the ability of the government to use silence for other than impeachment purposes has divided the lower courts. In fact, the Federal Evidence Review noted this split in the cases last year in our prospective review of evidence issues for the coming year, noting the issue appeared to be ripe for Supreme Court consideration. See Prospective: Ten Key Evidence Issues For 2012: Circuit Split: Admission Of Pre-Miranda Silence; see also Fifth Circuit Clarifies Circuit Split On Admission Of Pre-Miranda Silence.

Lower Court Ruling

In the case under review, an investigation ensued concerning the homicide shooting of two brothers in December 1992. Officers located discarded shotgun shells. At the end of January 1993, defendant Salinas voluntarily answered questions at his residence and then at the police station, he provided "elimination [finger]prints." He also signed a consent to search his residence. During an interview of nearly one hour at the police station, he answered all questions except one: "when asked whether shotgun shells found at the crime scene would match a shotgun found at his home," he "remained silent, and, according to the interrogating officer, demonstrated signs of deception." Salinas v. State, 369 S.W.3d 176, 177 (Tex. Crim. App. 2012) (No. PD-0570-11). Further investigation confirmed a ballistics match between the recovered casings and the defendant's shotgun. A witness also indicated that the defendant admitted murdering both victims. After being charged, the defendant's first trial resulted in a mistrial after the jury was unable to reach a verdict. At a second trial, the government was permitted to introduce evidence of his silence during police questioning. The defendant objected on Fifth Amendment grounds "whether he was in custody or not." During closing argument, the prosecutor highlighted the silence:

The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody – there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He didn’t respond that way. He didn’t say: No, it’s not going to match up. It’s my shotgun. It’s been in our house. What are you talking about? He wouldn’t answer that question.

The jury convicted the defendant and he was sentenced to serve twenty years in prison and ordered to pay a $5,000 fine. The Texas Court of Appeals noted a division in the courts on whether pre-arrest, pre-Miranda silence could be admitted, and affirmed the conviction. Salinas v. State, 2011 WL 903984, 2011 Tex. App. LEXIS 1923 (Tex. App.–Houston 14th Dist. Mar. 17, 2011). The Court of Criminal Appeals of Texas, exercising discretionary review, noted the open issue and also affirmed the conviction:

Neither the Supreme Court nor our Court has decided whether pre-arrest, pre-Miranda silence (which is at issue here) is admissible evidence against a non-testifying defendant. As the Fourteenth Court of Appeals noted, the courts that have weighed in on the issue are split. Those courts holding such silence to be admissible, guided by Justice Stevens’s concurring opinion in Jenkins v. Anderson, generally reason that the Fifth Amendment right against compulsory self-incrimination is “irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak.” Those courts holding such silence to be inadmissible view the Fifth Amendment right more expansively, reasoning that “once a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which [the] defendant exercised.” Nearly all of the courts that have addressed this issue have noted the conspicuous split and the lack of guidance from the Supreme Court.

...

We hold that pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against compelled self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies. The trial court did not err in allowing the State to do just that.

Salinasv. State, 369 S.W.3d 176 (Tex. Crim. App. 2012) (footnotes omitted). The Supreme Court has agreed to consider this issue.

Lower Court Division

Federal and state courts are divided on whether pre-arrest, pre-Miranda silence may be admitted or considered.

Permit Admission of Pre-Arrest, Pre-Miranda Silence

• Fourth Circuit: United States v. Quinn, 359 F.3d 666, 678 (4th Cir. 2004) (“Doyle forbids the government to use a defendant's silence against him at trial where the government implicitly or explicitly advised the defendant upon arrest that he should keep silent.”)
• Ninth Circuit: United States v. Oplinger, 150 F.3d 1061, 1066–67 (9th Cir. 1998), overruled on other grounds, United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (per curiam) (en banc)) (use of defendant's pre-arrest silence as substantive evidence of guilt does not violate Fifth Amendment)
• Eleventh Circuit: United States v. Rivera, 944 F.2d 1563, 1568 & n.12 (11th Cir. 1991) ("even if she was in custody at that time, the government could comment on her silence as she viewed Schor's inspection of Stroud's suitcase because she had not yet been given her Miranda warnings")

Do Not Permit Use Of Pre-Arrest, Pre-Miranda Silence

• First Circuit: Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989) (“Petitioner's constitutional rights were violated by the use of his statement in the prosecutor's case in chief”; error was not harmless beyond a reasonable doubt), cert. denied, 493 U.S. 969 (1989)
• Sixth Circuit: Combs v. Coyle, 205 F.3d 269, 2000 Fed.App. 0064P (6th Cir. 2000) (use of defendant's pre-arrest silence as substantive evidence of guilt violates Fifth Amendment privilege against self-incrimination), cert. denied, 531 U.S. 1035 (2000)
• Seventh Circuit: United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017–18 (7th Cir. 1987) (the right to remain silent is a constitutional right to say nothing about the allegations against oneself, and though Miranda warnings can provide additional protection, they are not necessary to the existence of the right)
• Tenth Circuit: United States v. Burson, 952 F.2d 1196, 1200–01 (10th Cir. 1991) ("the admission into evidence of the agents' testimony concerning Mr. Burson's silence was plain error"), cert. denied, 503 U.S. 997 (1992)
• Idaho: State v. Moore, 965 P.2d 174, 180 (Idaho 1998) ("We believe the better rule is that which holds that the defendants' Fifth Amendment right not to have their silence used against them in a court proceeding is applicable pre-arrest and pre-Miranda warnings.")
• Nebraska: State v. Rowland, 234 Neb. 846, 452 N.W.2d 758, 763 (Neb. 1990) ("it was indeed error for the trial court to permit Jarrett to testify concerning Rowland's unresponsiveness when questioned about whether his operator's license had been revoked and whether he was driving")
• New Hampshire: State v. Cassavaugh, 161 NH 90, 12 A.3d 1277, 1287 (N.H. 2010) ("The State simply introduced into evidence, in its case-in-chief, a transcript and videotaped recording of the defendant's initial police interview, including his specific request to terminate that interview. This was error.")
• Ohio: State v. Leach, 102 Ohio St. 3d 135, 2004-Ohio-2147, 807 N.E.2d 335, 339-42 (Ohio 2004) ("[W]e hold that use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. Because the evidence of guilt was not overwhelming in this case, the admission of defendant's pre-arrest, pre-Miranda silence was clearly prejudicial. ")
• Utah: State v. Palmer, 860 P.2d 339, 349-50 (Utah App. 1993) ("we conclude admission of the portions of the stipulated testimony implicating defendant's decision to remain silent, along with the prosecutor's cross examination of defendant and closing arguments based on that testimony, used to demonstrate defendant had a consciousness of guilt was error")
• Washington: State v. Easter, 130 Wash.2d 228, 922 P.2d 1285, 1292 (Wash. 1996) ("Easter's right to silence was violated by testimony he did not answer and looked away without speaking when Officer Fitzgerald first questioned him. It was also violated by testimony and argument he was evasive, or was communicative only when asking about papers or his friend.")
• Wisconsin: State v. Fencl, 325 N.W.2d 703, 711 (Wis. 1982) ("Any time an individual is questioned by the police, that individual is compelled to do one of two things — either speak or remain silent. If both a person's prearrest speech and silence may be used against that person, as the state suggests, that person has no choice that will prevent self-incrimination. This is a veritable "Catch-22." Thus the state's theory places an impermissible burden on the exercise of Fifth Amendment rights.")
• Wyoming: Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995) ("Since the right to remain silent is a self-executing right, an accused is presumed to be exercising the right by his silence, pre-arrest and pre-Miranda when questioned by the state's agents for purposes of a criminal investigation. Accordingly, the prosecutorial use of the citizen's silence to infer the guilt of the citizen is constitutionally prohibited.") (footnote omitted)

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In determining the scope of any Fifth Amendment protection, a question will be what use can be made, if any at all, with non-custodial, pre-Miranda silence. For example, can silence be used as substantive evidence, during closing argument, or for other purposes? The Federal Evidence Review will continue to follow this case as it progresses. The date for the oral argument has not yet been set. In the meantime, the following briefs and materials are available in the case:

Certiorari Petition Briefs

• Aug. 24 2012: Petition for Writ of Certiorari (Salinas)
• Sept. 26, 2012: Brief Amicus Curiae of National Association of Criminal Defense Lawyers in support of Petitioner
• Dec. 10, 2012: Brief in Opposition to Petition for Writ of Certiorari (Texas)
• January 11, 2013: Certiorari Review Granted

Lower Court Ruling and Record

• April 2012: Court of Criminal Appeals of Texas Opinion Under Review: Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012), cert. granted, _ U.S. _ (January 11, 2013) (No. 12-246)
• Supreme Court Docket

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