Prearrest Silence as Evidence of Guilt: What You Don't Say Shouldn't Be Used against You

Abstract

You have the to remain silent. In the landmark case of Miranda v Arizona, the Supreme Court articulated the familiar list of rights that police must give any arrestee before conducting a custodial interrogation, including the right to remain silent.' But the to silence articulated by Miranda only attaches once the defendant is in custody and has received the requisite warnings. In Jenkins v Anderson,2 the Supreme Court faced a defendant who, after allegedly murdering his victim, left the scene and was not arrested until he turned himself in to the police two weeks later. Testifying on his own behalf at trial, the defendant maintained he had killed in self-defense, a story he had not previously told the police. During cross-examination and the closing statement, the prosecutor used the defendant's silence between the time of the murder and his arrest to impeach the defendant's credibility. According to the prosecution, if the defendant did act in self-defense, he would have told his exculpatory story earlier.3 In affirming the conviction, the Court held that a prosecutor's use of prearrest silence for impeachment purposes does not violate the Fifth Amendment.4 But Jenkins addressed only the use of prearrest silence for impeachment purposes. The Court explicitly left open the constitutionality of substantive use of prearrest silence.5 In a substantive use case, the prosecutor does not introduce the prearrest silence to impeach the defendant's credibility at trial. Instead, the prosecutor uses the silence to suggest guilt. For example, in Savory v Lane,6 the police first approached the defendant a week after a double murder. Although they did not arrest the defendant, they did try to interrogate him. The de-