Pre-Arrest Silence In the U.S
In U.S. ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987) the state presented evidence that the defendant refused to speak with police when police attempted to question him regarding two murders committed the previous week. Id. at 1015.
The prosecutor also commented on the defendant's pre-arrest silence during closing argument. Id.
The United States Court of Appeals for the Seventh Circuit first noted that because the defendant did not testify at trial, the state's purpose in referring to the defendant's silence was not to impeach him, but rather to raise a substantive inference of his guilt. Id. at 1017.
The Court then held that such use of the defendant's silence violated his Fifth Amendment rights:
Griffin held that neither the prosecutor nor the court may invite the jury to draw an inference of guilt from an accused's failure to take the stand. . . .
While it is true that Griffin involved governmental use of the defendant's silence at trial, rather than when initially questioned by police, . . . we do not believe this factor makes a difference.
The right to remain silent, unlike the Sixth Amendment right to counsel, attaches before the institution of formal adversary proceedings. . . . We believe Griffin . . . applies equally to a defendant's silence before trial, and indeed, even before arrest. Id.
Three other federal circuit courts are in accord with the Seventh Circuit's holding in Savory Girts v. Yanai, 501 F.3d 743, 752 (6th Cir. 2007), reh'g denied, (2008), petition for cert. filed (U.S. May 19, 2008) (No. 07-1452) (holding that the prosecutor's statements concerning the defendant's pre-arrest silence were "improper" and "constituted prosecutorial misconduct because the defendant's silence cannot be used against him as substantive evidence");
Combs v. Coyle, 205 F.3d 269, 283, reh'g denied, (6th Cir. 2000), cert. denied, Bagley v. Combs, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533 (2000) (holding that "the use of a defendant's prearrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination");
United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991), cert. denied, 503 U.S. 997, 112 S. Ct. 1702, 118 L. Ed. 2d 411 (1992) (relying on Griffin to hold that "once a defendant invokes his right to remain silent," even if such invocation occurs pre-arrest, "it is impermissible for the prosecution to refer to any Fifth Amendment rights which the defendant exercised");
Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989), cert. denied, 493 U.S. 969, 110 S. Ct. 418, 107 L. Ed. 2d 383 (1989) (holding that where the defendant refused to confess to police prior to his arrest and did not testify at trial, the defendant "relied on the protection guaranteed by the Fifth Amendment" and the prosecutor could not use such silence as evidence of guilt).
Three federal circuit courts have reached contrary conclusions. See United States v. Oplinger, 150 F.3d 1061, 1067 (9th Cir. 1998) (holding that admission of evidence regarding the defendant's refusal to discuss allegations of criminal activity with a work supervisor prior to his arrest "did not offend the defendant's privilege against self-incrimination under the Fifth Amendment or his right to due process under the Fourteenth Amendment");
United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (holding that the government may introduce evidence of, and comment on, a defendant's pre-arrest silence where such silence was not induced by government action);
United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) (stating that "the government may comment on a defendant's silence if it occurred prior to the time that he is arrested and given his Miranda warnings").