Sign In
  • April 08, 2022

    To Remain Silent (Or Not): The Fifth Amendment in Federal Court

    Defendants’ misplaced reliance on an absolute – but imagined – right to remain silent upon arrest can leave them critically exposed at trial. Joshua D. Kundert discusses a critical flaw in federal court Fifth Amendment protections.

    Joshua Kundert

    The words of the Miranda warning have reached quasi-immortal status, driven by their incessant use in popular films and long-running television shows. Precisely when the rights they memorialize attach, however, is much less clear than many realize.

    That gap in knowledge can leave defendants critically exposed when placed under arrest. They believe, based on their favorite TV shows, that they have the absolute right to remain silent and not have such silence used against them.

    In truth, the fact that they stood silent may become a critical piece of evidence and lead, in part, to their eventual conviction.

    Multiple Miranda Scenarios

    The United States Supreme Court in Salinas v. Texas recognized that prosecutors may use pre-custodial silence as substantive proof of guilt regardless of whether the defendant takes the stand.1

    The Court in Doyle v. Ohio has also held that post-arrest, post-Miranda silence may not be used, whether for substantive proof of guilt or impeachment.2

    But what about scenarios that fall between those rules, where the defendant is under arrest but has not been read their Miranda rights?

    The Court has allowed the use of such silence for impeachment, but has not addressed the permissibility of its use when a defendant chooses not to testify.3

    The threat posed by the use of the latter is twofold. First, a survey of the case law persuasively argues that the Fifth Amendment right to remain silent is impermissibly burdened by the use of such silence. Second, its use in any context introduces utterly meaningless evidence into criminal proceedings.

    Joshua Kunder Joshua D. Kundert, is a 3L at Marquette University Law School.

    Burdening of the Fifth Amendment

    In the absence of direction from the Supreme Court, the various federal circuit courts have attempted to find an appropriate rule. Their answers have not been uniform, leading to the introduction of constitutionally injurious evidence and creating an urgent need for clarity on this issue. Wisconsin law, however, provides a useful blueprint.

    The decisions that have allowed the use of post-arrest, pre-Miranda silence have almost universally rested on the clarification of Doyle that came in Fletcher.4

    In Doyle, the Court specifically disallowed “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings.” As justification, the Court wrote that “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” Furthermore, even though the warning does not expressly assure that silence carries no penalty, “such [an] assurance is implicit to any person who receives the warnings” to such a degree that it would be unfair to use such silence at trial, even to impeach.5

    Fletcher, meanwhile, held that a defendant’s pre-Miranda silence can be used for impeachment because the defendant has not received any of the “affirmative assurances embodied in the Miranda warnings,” thereby eliminating both the ambiguity and fairness concerns.6

    The Fourth and Eleventh Circuits, the leaders in allowing post-arrest, pre-Miranda silence, have read Fletcher and Doyle to allow open commentary on such silence.7 Those two independent conclusions – the Fourth Circuit in Love and the Eleventh Circuit in Rivera – were reached despite the more limited language of Fletcher:

    ... [i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand.”8

    In neither Love nor Rivera did the defendant testify. But in both cases, the courts allowed government agents to testify that the defendant did not attempt to explain away his presence at a known drug smuggling location (Love) and had a “deadpan” reaction to the questions of a customs inspector (Rivera).9

    The Seventh Circuit, too, has suggested that post-arrest, pre-Miranda silence is permissible for use. In Feela v. Israel, the court allowed the use of post-arrest, pre-Miranda silence in the context of a cross-examination, but left the door open to wider use: “since Feela had not received assurances that his silence would not be used against him, his post-arrest, pre-Miranda silence was fair game.”10

    The Ninth Circuit, by contrast, has persuasively read Miranda, Doyle, and other precedents to create a regime that adequately prevents encumbrance on defendants’ self-incrimination rights.

    In United States v. Velarde-Gomez, the court considered the prosecution of Ramon Velarde-Gomez, who was stopped at the U.S.-Mexico border with a gas tank full of marijuana.11 Velarde-Gomez aroused suspicions of border agents upon arriving at the border, driving a car that was not registered to him. Agents, not believing Velarde-Gomez’s story about buying the car a short time prior, moved him to an interview room and searched the car, where they found 63 pounds of marijuana. Their newfound discovery in hand, agents proceeded to speak with Velarde-Gomez, who was informed of the discovery. Velarde-Gomez, who was not under arrest and had not yet been charged, “did not speak or physically respond.”

    Before trial, Velarde-Gomez moved to suppress evidence of his silence and demeanor when confronted with the agents’ discovery. The court, after initially granting his motion, allowed the testimony at trial. The appeals court, after relaying the dictates of the Fifth Amendment, reiterated the Supreme Court’s view of the prophylactic nature of Miranda.

    The court then drew an important inference: while the dictates of Miranda serve a critical preventive function in protecting rights, those dictates are not the genesis of those rights.

    Essentially, in the compelling words of the Ninth Circuit, the Constitution, and the Supreme Court’s precedents, when read together, conclusively express that, while Miranda protects the rights of defendants, the rights themselves flow from the Constitution.

    Therefore, upon a defendant’s arrest, that defendant enjoys the right to “remain silent in the face of government questioning, regardless of whether the Miranda warnings are given.”

    By so holding, the Ninth Circuit recognized that the Fifth Amendment right against self-incrimination vested upon arrest, not interrogation.12

    While it is certainly true that defendants are not entitled to be read Miranda warnings until they are subjected to police interrogation,13 Miranda is not the genesis of the rights themselves.

    As the Supreme Court has noted, Miranda is prophylactic, not donative.14 It stands to reason then, the rights discussed therein attach regardless of the expression of the Miranda warning.

    Any other formulation would suggest that the rights of defendants flow from Miranda and its words rather than from the Constitution.

    Introduction of Meaningless Evidence

    Admission of silence as substantive proof at trial must comport with both evidentiary and constitutional law.

    Generally, the basis for the use of silence as evidence is adoptive admission, meaning the trial court considers a defendant’s silence in the face of questioning to be tantamount to acceptance of the question’s premise.15

    Silence as an adoptive admission, however, is fraught with problems, but three in particular:

    • First, as Justice Marshall noted in United States v. Hale, silence is often so “ambiguous that it is of little probative force.”16

    • Second, Justice Marshall cited noted evidence theorist John Henry Wigmore to say that while “[s]ilence gains more probative weight where it persists in the face of accusation, … [f]ailure to contest an assertion … is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question.”17

    • Finally, and further clouding the reliability of silence, is the inclination of innocent as well as guilty defendants, “perhaps particularly the innocent,” to stand mute in the face of the situation’s intimidation.18

    These three tenants cast critical doubt on the use of such silence against defendants, and warrant its wholesale exclusion, lest a jury infer too much from a defendant’s silence or draw a conclusion that is unwarranted based on evidence that Justice Marshall suggested is unreliable as a matter of law.

    Wisconsin as a Blueprint

    Wisconsin law, by contrast, is much clearer and considerably more favorable to defendants.

    The Wisconsin Supreme Court noted in State v. Brecht that “the right to silence attaches at the time of a defendant's arrest, even though no police interrogation or questioning occurs.”19

    So strong is the protection that it is impermissible for a testifying officer to simply relay that the defendant “just put his wrists out … for the handcuffs and never said a word.”20

    Conclusion: A Troubling Lack of Guidance

    The use of post-arrest but pre-Miranda silence, rightly barred in Wisconsin, poses troublesome issues for federal defendants.

    Those troubles are only complicated by the lack of guidance from the U.S. Supreme Court, and the resulting disparate treatment of defendants in different circuits.

    The case law presents a compelling argument for disallowing the use of such silence, and we can only hope the U.S. Supreme Court will soon agree.

    This article was originally published on the State Bar of Wisconsin’s Criminal Law Section Blog. Visit the State Bar sections or the Criminal Law Section webpages to learn more about the benefits of section membership.


    1 Salinas v. Texas, 570 U.S. 178, 186–91 (2013).

    2 Doyle v. Ohio, 426 U.S. 610, 619 (1976); see also United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).

    3 Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (“Thus, the Constitution does not prohibit the use for impeachment purposes of a defendant's silence prior to arrest, or after arrest if no Miranda warnings are given.”) (citing Jenkins v. Anderson, 447 U.S. 231, 239 (1980); Fletcher v. Weir, 455 U.S. 603, 606–607 (1982)).

    4 Love, 767 F.2d at 1063.

    5 Doyle, 426 U.S. at 618-19.

    6 Fletcher, 455 U.S. at 607.

    7 Love, 767 F.2d at 1063; see also United States v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir. 1991); United States v. Wilchcombe, 838 F.3d 1179, 1190 (11th Cir. 2016) (“The Eleventh Circuit goes a step further. We permit the prosecution to use a defendant’s post-arrest, pre-Miranda silence as direct evidence that may tend to prove the guilt of the defendant.”)

    8 Fletcher, 455 U.S. at 607 (emphasis added).

    9 Love, 767 F.2d at 1063; Rivera, 944 F.2d at 1565.

    10 Feela v. Israel, 727 F.2d 151, 157 (7th Cir. 1984).

    11 United States v. Velarde-Gomez, 269 F.3d 1023, 1026 (9th Cir. 2001).

    12 Id.

    13 United States v. Thompson, 496 F.3d 807, 810 (7th Cir. 2007).

    14 Doyle, 426 U.S. at 617; Michigan v. Tucker, 417 U.S. 433, 443–44 (1974).

    15 Marty Skrapka, “Silence Should Be Golden: A Case Against the Use of a Defendant's Post-Arrest, Pre-Miranda Silence as Evidence of Guilt,” 59 Okla. L. Rev. 357, 362 (2006).

    16 United States v. Hale, 422 U.S. 171, 176 (1975).

    17 Id.

    18 Id.

    19 State v. Brecht, 143 Wis.2d 297, 311 (1988) (citing Reichhoff v. State, 76 Wis.2d 375 (1977)).

    20 Id. (quoting Reichhoff, 76 Wis.2d at 377 n.1).

    Need help? Want to update your email address?
    Contact Customer Service, (800) 728-7788

    Criminal Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Michael O'Hear and review Author Submission Guidelines. Learn more about the Criminal Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

    State Bar of Wisconsin Logo

Join the conversation! Log in to leave a comment.

News & Pubs Search

Format: MM/DD/YYYY