At a recent drunk driving bench trial — in Maryland, where defendants facing over ninety days of possible incarceration for one count may opt for a bench trial followed by a de novo jury trial on appeal, or a jury trial in the first instance — the police officer testified that my client was silent when the officer asked my client on the roadside about what he had imbibed earlier that evening.

I objected to that line of testimony, on the grounds that my client had a Fifth Amendment right not to answer the question, and to have his silence excluded from evidence. The judge overruled my objection, on the basis that a Terry stop — Terry v. Ohio, 392 U.S. 1 (1968) — was in progress, and not an arrest. In my view, the judge’s latter ruling erroneously mixed up the caselaw that on the one hand generally does not require Miranda warnings during the initial investigational phase of a stop for a vehicle moving violation, and on the other hand does not permit a suspect to be burnt by asserting the right to remain silent by having that silence come into evidence, whether or not Miranda warnings have been given. See below for the caselaw on both of the latter two points. To permit suspects’ silence to come into evidence before Miranda is triggered will encourage police to delay arresting a silent suspect in order to be able to testify about a long litany of questions to which the suspect remained silent (including "Did you kill Joe?, "Why did you kill Joe?, and "Why did we find your fingerprints on a knife at Joe’s apartment?").

Last January, I blogged about Longshore v. Maryland, 399 Md. 486, 537-38, 924 A.2d 1129 (2007), which found no harmless error in the introduction of evidence of a suspect’s refusal to permit a search. Just as the suspect in Longshore was not under arrest at the time of such refusal — and the appellate courts have not even found a Constitutional right to be told of the right to refuse a search — but still had a right to preclude the jury from learning that he had refused a search (and even that he had been asked permission to search, where, as here, he refused it), nor is silence (as well as the questions that lead to silence) in the face of pre-arrest police questioning permissible at trial during the prosecution’s case in chief.

To be sure, if a criminal defendant testifies at trial, s/he then risks being questioned concerning pre-arrest silence. Greer v. Miller, 483 U.S. 756 (1987).

As to the role of Miranda with Terry-stage questioning, it is unfortunate that police are not obliged to give Miranda warnings during each and every Terry stop. The Fourth Circuit has articulated the situation as follows: "A person subjected to custodial interrogation is entitled to the procedural safeguards prescribed by Miranda, and therefore, any statements a suspect makes during custodial interrogation are inadmissible in the prosecution’s case in chief unless prior Miranda warnings have been given. See Stansbury v. California, 114 S.Ct. 1526 (1994) (per curiam); Berkemer v. McCarty, 468 U.S. 420 (1984). A suspect is ‘in custody’ for Miranda purposes if the suspect has been formally arrested or if he is questioned under circumstances in which his freedom of action is curtailed ‘of the degree associated with a formal arrest.’ Stansbury, 114 S.Ct. at 1529 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam))." U.S. v. Leshuk, 65 F.3d 1105, 1008 (4th Cir.1995).

Cops need to know that during the prosecutor’s case in chief, no prosecution witness may testify about a suspect’s silence. Jon Katz.