Do You Have the Right to Remain Silent: The Substantive Use of Pre-Miranda Silence
![handle is hein.journals/bamalr58 and id is 913 raw text is: Do You HAVE THE RIGHT TO REMAIN SILENT?:
THE SUBSTANTIVE USE OF PRE-MIRANDA SILENCE
INTRODUCTION
The Fifth Amendment provides, [n]o person... shall be compelled in
any criminal case to be a witness against himself.' One of the rights en-
compassed by the privilege against self-incrimination is the right to remain
silent.2 Due in large part to the popularity of police and law dramas on tele-
vision and in movies, the right to remain silent is perhaps one of the most
widely known constitutional rights.3 Most Americans, however, would
likely never consider that their exercise of this right could be used against
them to prove their guilt in a criminal trial.4
The Supreme Court has never addressed whether a defendant's silence
prior to his receipt of Miranda warnings can be used against him as substan-
tive evidence of his guilt.5 However, some federal circuit courts have held
that the prosecution may introduce a defendant's pre-Miranda silence as
evidence of guilt in its case-in-chief.6 For example, in United States v. Fra-
zier, the defendant was pulled over while driving a U-Haul.7 A search of the
truck turned up more than four million tablets of pseudoephedrine.8 Frazier
later claimed that he was innocent and had merely accepted a friend's offer
to drive the truck from one city to another.9 At trial, the arresting officer
testified that Frazier was not angry or surprised when he was arrested but
that he remained silent upon being told why he was being arrested.'° At
closing, the prosecutor noted that this silence was indicative of Frazier's
guilt: If a person has a friend who betrays them, what's the innocent person
going to do when they discover they're going to jail. ... Are they going to
become combative, angry, emotional, demanding? There was none of them
from... Mr. Frazier.' The Eighth Circuit ultimately decided that this use
of the defendant's silence did not violate the Constitution, holding that an
1. U.S. CONST. amend. V.
2. Miranda v. Arizona, 384 U.S. 436,444 (1966).
3. Aaron R. Pettit, Comment, Should the Prosecution be Allowed to Comment on a Defendant's
Pre-Arrest Silence in Its Case-In-Chief?, 29 LoY. U. CHI. L.J. 181, 181 (1997).
4. Id.
5. Id. at 182.
6. See infra Part Il.A.2.
7. United States v. Frazier, 394 F.3d 612, 615 (8th Cir. 2005).
8. Id. at 616.
9. Id.
10. Id. at 618.
11. Id. (quoting the prosecutor's closing argument) (internal quotation marks omitted).](ViewImageLocal?handle=hein.journals/bamalr58&div=36&collection=journals&method=preview&ext=.png&size=3)
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Do You Have the Right to Remain Silent: The Substantive Use of Pre-Miranda Silence
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