Fifth Circuit Notes Split re Substantive Prosecutorial Use of Post-arrest, Pre-Miranda Silence

Per U.S. v. Salinas, --- F.3d ----, 2007 WL 646132 (5th Cir. Mar. 5, 2007):

[T]here is a split among the other federal circuits as to whether a prosecutor's use of a defendant's post-arrest, pre- Miranda v. Arizona, 384 U.S. 436 (1966) silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. The Seventh, Ninth, and D.C. Circuits have all squarely held that it does. The First and Sixth Circuits have gone further and have held that the substantive use of even pre-arrest silence can violate the privilege against self-incrimination. The Fourth, Eighth, and Eleventh Circuits have, on the other hand, found the substantive use of post-arrest, pre- Miranda silence during the prosecution's case-in-chief permissible.

We need not decide this constitutional question today. Because this circuit's law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, even assuming that the prosecutor's comments were improper, Salinas cannot satisfy the second prong of the plain error test-that the error be clear under existing law.