E.D. Mich. Notes Split re Constitutionality of Use of a Criminal Defendant's Post-Arrest, Pre-Miranda Silence as Substantive Evidence

Per McNally v. Lafler, Slip Copy, 2006 WL 156322 (E.D. Mich. Jan. 20, 2006):

In the present case, the United States Supreme Court has not spoken dispositively on the issue of whether the use of a criminal defendant's post-arrest, pre-Miranda silence as substantive evidence violates the Fifth or Fourteenth Amendments. In fact, there appears to be a split in the circuits on this issue. A number of circuits have held that it is permissible for a prosecutor to use a criminal defendant's silence after he or she is arrested, but before Miranda warnings have been given, as substantive evidence. See United States v. Frazier, 408 F.3d 1102, 1111 (8th Cir.2005) (holding that when no governmental action induced post-arrest, pre- Miranda silence, it could be introduced as evidence of guilt); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991) (prosecution may comment on a defendant's post-arrest silence prior to Miranda warnings being given); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985)(same); Compare United States v. Moore, 104 F.3d 377, 385 (D.C.Cir.1997)(introduction of defendant's pre- Miranda custodial silence violates the Fifth Amendment); United States v. Whitehead 200 F.3d 634, 638 (9th Cir.2000)(same).