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.”).