The United States Supreme Court is being asked to considers a petition for Certiorari regarding whether Post-Miranda silence violates the privilege against self-incrimination after the defendant’s arrest when it is allowed to be used by the prosecutor during their case-in-chief to prove a criminal charge.

In the case of Adalberto Frickson Palacious-Solis v. United States of America, the defendant was charged with federal drug trafficking. The charge was conspiracy to possess with the intent to distribute and possession with the intent to distribute over five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States.

His first trial ended in a hung jury.  The Government elected to try the case again as is there right and the defendant was convicted at the second trial.  To read the filings in the case you can go to the Scotus Blog link.

The issue in the case is whether the defendant’s silence after he is arrested but before he is given Miranda can be used as evidence in the case.  The officers testified that the defendant remained silent in response to questions and was not jumping for joy to see the officers.  The prosecutor during closing argued that when the defendants were found they were not happy.  He argued that when the officers asked about the vessel no one said a word.

The petition for certiorari points out there is a division within the courts regarding whether this silence is admissible.  The petition points out that in the 4th, eighth, 11th circuits and two State courts this type of evidence is admissible.

Other Circuits including the DC Circuit, Sixth and ninth circuit and several State Courts hold this evidence violates Miranda.  Massachusetts SJC case law would likely bar this testimony from coming into evidence as the SJC has cautioned that even pre-arrest silence should be approached with caution in terms of its admissibility at trial.

The Courts that find a Miranda Violation hold that comment on a defendant’s silence is unconstitutional when Miranda applies regardless of whether the warning is actually given.

Pre-Arrest Silence and Miranda

The United States Supreme Court did address the issue of pre-arrest silence and Miranda warnings in the case of Salinas v. Texas, 570 U.S. 178 (2013).

In Salinas, the defendant was voluntarily answering questions of the police.  He was not in custody or given Miranda warnings.  When asked about whether ballistic evidence would match his firearm, the defendant did not answer and the State presented this evidence arguing that his reaction showed that he was guilty.

In Salinas, the United States Supreme Court emphasized that a person must claim the privilege against self-incrimination to invoke it.  The Court noted two exceptions; that a defendant is not required to invoke it on the witness stand before testifying and a second exception is that if government coercion makes the forfeiture of the privilege involuntary.

The United States Supreme Court held that the defendant’s agree to speak to the police and he was not deprived of the opportunity to invoke the privilege.  The Court decided a similar case of Berghuis v. Thompkins, 560 U.S. 370 (2010), where the Court found post-Miranda silence admissible when the defendant refused to respond to questions for 2.5 hours but failed to invoke Miranda.

The Court rejected the argument that the defendant thought he was invoking Miranda by remaining silent.  Thompkins requires that a defendant invoke Miranda with utmost clarity under the Fifth Amendment.  The Massachusetts Supreme Judicial Court under Article 12 declined to adopt this view, in Commonwealth v. Clarke, 461 Mass. 336 (2012) and required the police to ask for clarification when a defendant makes an ambiguous statement regarding his right to remain silent.

The United States Supreme Court in Salinas read Miranda very narrowly stating theta the Fifth Amendment guarantees that one one may be compelled in any criminal case to be a witness against himself.  It does not establish an unqualified right to remain silent.  In Salinas, the defendant was advised of his Miranda rights.  He never invoked Miranda saying he did not want to talk to the police, but remained silent.  There was no express invocation of Miranda.  After 3 hours, he answered yes when asked if he prayed to God to forgive him for the shooting.

The logic is that the Miranda requirement begins when the defendant is in custody and not when formal questioning starts.

Judge Rosenbaum in the 11th Circuit concurred in the decision upholding the conviction but found that an in-custody person’s silence should not be used against him even if he does not expressly invoke Miranda, but she affirmed the conviction finding the other evidence of guilty was sufficient.

This is an important issue for criminal defense lawyers as silence should not be admissible as an evidence of guilty as it would violate the privilege against self-incrimination and encourage the police to delay providing Miranda warnings.  The defendant in its brief argued that once a defendant is in custody, the circumstances present a serious danger of coercion.  The police should not be permitted to delay providing Miranda in order to coerce a statement from a defendant.  The defense lawyers argued that Miranda rights are not created when the officer reads the rights but exits prior to that point.  The officer is not creating the Fifth Amendment privilege against self-incrimination by reading the rights so the timing of when the officer reads the rights should not govern whether the privilege applies.  The point the defense argues is that the point of Miranda is to inform a defendant of his rights; the police are not creating the rights.  While I believe the Court should find a Miranda violation in this case,. given the United States Supreme Court has been eroding the Miranda requirement I would not be surprised if the Court declines to grant certiorari or upholds the conviction.  If the Court does grant certiorari, this would be a dangerous erosion of Miranda.  Even a more conservative court should recognize that post-arrest silence stands on a different footing from pre-arrest silence.  as a defense lawyer, there are issues with allowing into evidence silence of either type, but the evidence admitted in the case before the United States Supreme Court in the petition was a fairly egregious violation of Miranda.

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