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August 09, 2012


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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.

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