N.D. Georgia Notes Split Re: Whether Use of Pre-Arrest Silence in Government’s Case-in-Chief Violates Fifth Amendment

Per Prevatte v. French, 459 F.Supp.2d 1305 (N.D. Ga. Nov. 27, 2006):

The Court notes that the Circuits are divided on the issue of whether the use of pre-arrest silence in the government's case in chief violates the Fifth Amendment. Compare Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.2000) (holding that the use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991) (holding that admission of testimony regarding defendant's pre-arrest failure to respond to questioning violated the Fifth Amendment); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.1989) (holding that testimony in case in chief regarding defendant's statements that he was not going to confess and would not answer further questions without presence of lawyer violated Fifth Amendment); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017-18 (7th Cir.1987) (finding that prosecution's use of defendant's refusal to talk to the police as substantive evidence of guilt in case in chief violates Fifth Amendment), with United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.1998) ("[T]he privilege against compulsory self-incrimination is irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak."); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996) (holding that Fifth Amendment does not protect the defendant's prearrest silence, reasoning: "The fifth amendment protects against compelled self-incrimination but does not, as [defendant] suggests, preclude the proper evidentiary use and prosecutorial comment about every communication or lack thereof by the defendant which may give rise to an incriminating inference.").

In the Court's view, however, the reasoning applied in those cases finding that the use of pre-arrest silence does not violate the Fifth Amendment is inapplicable here. Petitioner's decision to remain silent about which the jury heard occurred in the post-arrest context. Whether or not Fifth Amendment protection attaches to pre-arrest silence, it certainly attaches to post-arrest silence during custodial interrogations. See, e.g., Jenkins, 447 U.S. at 243-44, 100 S.Ct. 2124 (Stevens, J., concurring) ("When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment. For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent.").