In United States v. Frazier, No. 04-1005 (8th Cir., Jan. 7, 2005), a unanimous three-judge panel held that that the prosecution may use a defendant's post-arrest, pre-Miranda silence as part of its case-in-chief.
The following is an example of the line of questioning at issue:
Q [Prosecutor]: Did you talk with Mr. Frazier . . . or tell [him] why [he was] being arrested?
A [Officer]: I just told [him] that [he was] under arrest for suspicion of narcotics.
Q: What was Mr. Frazier's reaction when you . . . placed him into custody?
A: There really wasn't a reaction.
Q: Was he angry?
A: No, sir.
Q: Was he surprised?
A: No, sir.
Q: Did he become combative?
A: No, sir.
Q: Did he say anything to you?
A: No, sir.
Q: Did he do anything when you put the handcuffs on him?
A: No, sir.
At closing, the government noted Frazier's conduct after arrest as one factor that could be indicative of guilt. "If a person has a friend who betrays them, what's the innocent person going to do when they discover they're going to jail. Everybody else is back in Chicago. Are they going to become combative, angry, emotional, demanding? There was none of them from . . . Mr. Frazier."
How post-arrest silence issues usually arise.
The black letter rule is that the prosecution may not use a defendant's post-Miranda silence against him. The reasoning is that using the defendant's right to remain silent against him would punish him for exercising his Fifth Amendment privilege against self-incrimination. It would also undermine Miranda to say, "You have the right to remain silent, but if you exercise this right, we will use your silence against you." Moreover, the prosecution may not mention the defendant's refusal to testify at trial against him.
However, the Court has recognized that in some cases, the use of post-arrest silence is appropriate, namely, when the prosecution seeks to impeach the defendant's credibility.
Let's say the defendant takes the stand and testifies that the reason he shot the victim was because the victim was attacking him. On cross-examination, the prosecution may ask the defendant why he did not tell the police this. This is a typical impeachment of witness credibility. It's suspicious for a defendant to not tell the police that he acted in self-defense but instead to wait until months later. It sounds more like fiction than truth, more like a story concocted for trial than what actually happened. As such the prosecution can go into that with the defendant.
But the prosecution here used the defendant's silence as part of its case-in-chief. In other words, it used it as evidence that the defendant knew that he was smuggling drugs, since if he was not smuggling drugs, he would have expressed outraged that his friend set him up.
Why this case presents a Catch-22 for criminal defendants.
Here the defendant did what everyone agrees that he should do, namely, not talk to the police. Everyone criminal attorney I know teaches that the only thing you should say to the police is your "name, rank, and serial number." The prosecution will spin everything you say against you, so why give material to work with? Moreover, the police will arrest the defendant no matter what he says. We've all heard this line on TV: Save it for the judge.
What worse about the case is that the police usually set the defendant up so that they don't have to give him his Miranda warnings. It's not like TV where the police cuff the defendant and then immediately read him his rights. This is against their interest, since a defendant cognizant of his rights might not give the inculpatory information. And the police aren't required to read the defendant his Miranda warnings upon arrest.
The police need to give the defendant his Miranda warnings only if two elements are met: (1) custody; (2) interrogation. Once arrested, a defendant is in custody. But if the police do not ask him any questions, then the interrogation prong is not met. Thus, if the defendant gives inculpatory statements, e.g., in the back seat of a police cruiser, he can't later claim that his Miranda rights were violated.
Now the defendant is in a Catch-22. If he talks before receiving his Miranda warnings, then his statements can be used against him. If he remains silent (in an environment deliberately created to prevent the police from being required to Mirandize him), then his silence can be used against him.
The only way for the defendant to escape the adverse inference to be drawn from his post-arrest silence is for him to take the witness stand to explain his conduct. But that defeats the purpose of the privilege against serving as a witness against yourself.
[Please excuse any typos or incoherence. This is a huge case that I want you to know about right now, so I am going to continually update this post.]