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Evidence Of Pre-Miranda, Pre-Arrest Silence Is Admissible To Prove Guilt, Prosecutors Say

Publication Date: 
April 24, 2013
Criminal Law Reporter - BNA
Hugh B. Kaplan

Professor Jeffrey Fischer was quoted by the Criminal Law Reporter's Hugh B. Kaplan regarding Fischer's defense of the "genuine Fifth Amendment right to remain silent" in front of the Supreme Court and his argument that the express-invocation rule "unnecessary."

The U.S. Supreme Court heard oral argument April 17 on the long-standing and divisive issue of whether the Fifth Amendment's Self-Incrimination Clause allows prosecutors to obtain a conviction with evidence that a defendant refused to answer investigators' questions during a noncustodial interview before Miranda warnings were given. (Salinas v. Texas, U.S., No. 12-246, 4/17/13)

In this case, a jury found the defendant guilty of murder. At trial, prosecutors presented evidence that he voluntarily came to the police station and answered investigators' questions except when they asked him whether a shotgun that the police had taken from his home would match shotgun shells left by the perpetrator.


Professor Jeffrey L. Fisher, of Stanford Law School's Supreme Court Litigation Clinic, Stanford, Calif., represents the defendant. He told the justices that allowing the state to ask someone to incriminate himself and then, if he refuses, to use evidence of his silence as proof of his guilt "strikes at the core of everything … the Fifth Amendment is designed to prohibit."

"It evokes an inquisitorial system of justice" that the Founders sought to eliminate with the Fifth Amendment, Fisher said. Moreover, it "effectively shifts the burden of proof onto the defendant" and "demeans individual dignity by conscripting the defendant as a product of his own demise," he explained.


Alluding to the decision in Thompkins, Sotomayor asked Fisher to explain why adopting his proposed rule allowing implied invocations would not be seen as giving greater rights to suspects in the noncustodial context than in the custodial context.

Fisher explained that Thompkins dealt with the Miranda "prophylactic right" to stop officers from continuing a pretrial interrogation, and the court has always said Miranda rights must be expressly invoked. In contrast, this case involves "the genuine Fifth Amendment right to remain silent," Fisher said. Moreover, Thompkins involved the trial use of evidence of a defendant's statements, whereas this case involved the use at trial of evidence of a defendant's silence, Fisher added.


Because most people know they have the right to remain silent, it would be unfair to hold that when someone exercises this right, even though police did not mention the right, it can be used against him, Fisher argued.


Fisher urged the justice to ask himself "whether there's any good reason to require an express invocation in that setting." He emphasized that the defendant did expressly invoke his Fifth Amendment right to remain silent at trial in a timely manner and asked for the evidence of his pretrial silence to be excluded. Requiring him to invoke the right sooner is "unnecessary, unfair, and a rule like that would be unadministerable," Fisher argued.

An express invocation rule is unnecessary "because all the cases the solicitor general cites for an express invocation principle involve a scenario where the government has no good reason to know that it's seeking incriminatory information," Fisher said. Texas and the Department of Justice both rely on Minnesota v. Murphy,465 U.S. 420 (1984), as establishing a general rule that the Fifth Amendment privilege is not self-executing and that a suspect must invoke it to claim its protection.

The defense argues in its briefs that the probation officer who was conducting the questioning in Murphy would not have understood that the answers to her questions would be incriminating and thus she needed to be put on notice that the person being questioned was invoking his Fifth Amendment rights. The same is not true in this case, Fisher said, because it was clear that the defendant was invoking his right to remain silent. Although Texas and DOJ argued that the defendant's silence could have been due to numerous reasons other than the desire to stand on the right to silence, the prosecutors at trial argued that the defendant was refusing to answer, Fisher said.

The facts of this case show that the express-invocation rule is unnecessary, Fisher continued. When the government knows or has a "good reason" to know that someone is invoking his right to remain silent, it can take certain actions, such as getting a court order or granting immunity, he noted. In this case, however, the police would not have done anything differently had the defendant expressly invoked his right to silence, Fisher said.

"The rule that the state and the solicitor general have fallen back on in court today is formalism of the absolute worst kind," he said. It "is just nothing more than a trap for the unwary, who is told through culture and learning that he has a right to remain silent."


Fisher argued that investigators will not have an incentive to play close to the line once they know evidence of silence is off-limits at trial. Anders pointed out that courts already apply an express-invocation rule in the context of post-waiver custodial questioning.