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Prosecutors: The right to remain silent attaches before MIranda does

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In sadly short intervals, a Virginia and Maryland prosecutor recently asserted before a judge during trial that my client did not talk before being in custody, and that the Fifth Amendment does not apply to pre-arrest situations. Clearly, the foregoing prosecutors could have correctly claimed that Miranda warnings need not be administered to allow pre-arrest statements into evidence. However, the Fifth Amendment applies both to pre-arrest and post-arrest problems.

In any event, pre-arrest silence can be admissible for impeaching a criminal defendant on the witness stand. The use of pre-arrest silence against a defendant who did not testify is allowed in some jurisdictions and not in others. Miranda and the Fifth Amendment do not sound so protective when a defendant’s pre-arrest silence can be brought in the prosecution’s case in chief.

Here is an overview of some applicable authorities on the use of pre-arrest silence in open court:

– Here is a March 2009, survey of the federal appellate circuits’ views on admitting pre-arrest silence into evidence for criminal cases. Unfortunately, numerous federal courts allow pre-arrest silence into evidence.

– At the state level where I practice, here are some instructive court opinions:

— In Maryland, "[w]e think the better view is that the evidence is too ambiguous to be probative when the "pre-arrest silence" is in the presence of a police officer, and join the increasing number of jurisdictions that have so held."  Weitzel v. Maryland, 384 Md. 451, 456, 863 A.2d 999 (2004)

— Virginia’s intermediate appellate court has said: "[W]e find that the government’s interest in using the appellant’s pre-arrest silence in response to a police officer’s question as substantive evidence of guilt is substantially outweighed by the burden which such practice imposes on the privilege against self-incrimination."  Taylor v. Com., 26 Va.App. 485, 495 S.E.2d 522 (1998). 

— In D.C., the most relevant court opinion I found appears to say that the District of Columbia Court of Appeals has not yet determined whether pre-arrest silence by a non-testifying defendant can be used. Coates v. US., 705 A.2d 1100 (1998).

– At the federal level where I practice, here are the instructive appellate court opinions

— The Fourth Circuit allows pre-arrest silence: "In this case neither Love nor Youngblood had been given any Miranda warnings at the time Agent Hill observed their silence. As a result, under Doyle and Fletcher, Agent Hill’s testimony was properly admitted." U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985). 

— The D.C. Circuit forbids pre-arrest silence: "Even as to impeachment, the prosecution may not use the silence after the defendant is warned of his Miranda rights. There may be another exception to the bar against the use of silence where the silence occurred before the defendant’s arrest. Neither exception applies in this case as Moore did not testify and the record does not support the proposition that the prosecution was referring to pre-arrest silence. Therefore, Moore is correct that the prosecutor’s comment on his pre-trial silence violated his constitutional rights." U.S. v. Moore,  104 F.3d 377, 389 (D.C. Cir. 1997).