Fifth Circuit Notes Split Pertaining to 5th Amendment Privilege against Self-Incrimination

Per U.S. v. Martinez-Larraga, --- F.3d ----, 2008 WL 324783 (5th Cir. Feb. 07, 2008):

We also note that this court has not resolved, and there is a circuit split as to, whether the Fifth Amendment privilege against self-incrimination prohibits prosecution proof, as substantive evidence of guilt, of a nontestifying defendant's post-arrest, pre- Miranda warning silence not in response to custodial interrogation. See United States v. Salinas, 480 F.3d 750, 758-59 (5th Cir.2007); United States v. Frazier, 408 F.3d 1102, 1110-11 (8th Cir.2005).