Can Prosecutors Use a Defendant's Pre-Arrest Silence as Evidence of Guilt?

Last Friday a district court in Michigan denied a criminal defendant’s habeas petition in which he argued that the prosecutor’s use of his pre-arrest silence as substantive evidence of his guilt violated his constitutional right to silence. See Hall v. Bell, Case No. 10-CV-10438 (E.D. Mich. Aug. 3, 2012). In doing so, the district court acknowledged the fact that the Supreme Court has yet to address the issue. The Court’s silence on the issue has led to the following circuit split:

A. The use of a defendant’s pre-arrest silence as substantive evidence of guilt violates the defendant’s right to silence. 

• Combs v. Coyle, 205 F.3d 269, 282–83 (6th Cir. 2000)

• United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991)

• Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989)

• United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987)

• United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. Cal. 2001)*

B. The use of a defendant’s pre-arrest silence as substantive evidence of guilt does not violate the defendant’s right to silence.

• United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996)

• United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991)

*The court’s opinion in Hall v. Bell cites a Ninth Circuit case for its holding that the use of “pre-arrest silence as substantive evidence of guilt does not violate the privilege against self-incrimination.” Case No. 10-CV-10438 (E.D. Mich. Aug. 3, 2012) (citing United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.1998)). It’s worth noting, however, that the Ninth Circuit sitting en banc explicitly overruled Oplinger in United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc). The Ninth Circuit has actually taken the opposite position on the issue. See United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001) (“We hold that the district court erred in allowing comment on Velarde's post-arrest, pre-Miranda silence.”).

Comments

[Nick]

Upset at the idea of the 5th Circuit ruling that pre-arrest silence is admissible as evidence of guilt, I just read the 5th Circuit case cited above.

The "silence" in question had to do with the defendant's claim that he was only trafficking drugs because someone had threatened his daughter if he didn't. The prosecution countered this claim by pointing out that the defendant had never called the police or reported to anyone that someone was threatening his daughter.

This is much different from the situation that I imagined, which is more like the facts in the Velarde-Gomez case from the 9th Circuit. In the latter, I see the defendant's right to remain silent at play. It was a custodial interrogation, and the defendant was being investigated for a crime. Obviously, using his silence in that situation as evidence of guilt would violate his 5th Amendment rights. In the 5th Circuit case, the defendant's "silence" occurred before he was ever suspected of a crime and even before the crime was ever suspected. Further, his silence was not prompted by the government and did not occur during any kind of interrogation. I don't see any 5th Amendment issues. I'm not sure how the case has been interpreted by subsequent cases in the 5th Circuit, but reading this case alone does not give me the impression that the 5th Circuit would allow statements such as the ones in Velarde-Gomez to be admitted.