Sorting Silence Problems

Sorting Silence Problems

The leaf asks two things about a person who stays silent: whether the privilege applies to that silence, and whether the silence may later be treated as evidence of guilt. This section works on the second question, and the answer comes from two different constitutional sources. A defendant's failure to testify at his own trial is protected by the Fifth Amendment itself, which is why Griffin v. California forbids the prosecutor and the judge from commenting on it.¹ Silence after Miranda warnings is protected by due process, because the Court has said that the post-warning line rests on the Due Process Clause and not on the Fifth Amendment.² Throughout this section, an answer of "yes" means the silence may not be used against the defendant, and "no" means the prosecution may use it.

The two lines respond to different harms, and that difference is what makes sorting possible. At trial the harm is a penalty imposed through the court's own process: if the prosecutor or judge could tell the jury that a defendant who stays off the stand probably has something to hide, using the privilege would cost the defendant the very protection it promises, so the Fifth Amendment supplies the rule.³ After warnings the harm is a broken promise. The state has told the suspect of the right to remain silent, the warnings carry an implicit assurance that silence will bear no penalty, and later use of that silence as proof would turn the state's own words into a trap, so fairness under due process supplies the rule.⁴ Where neither harm is present, because nothing compelled the silence and nothing assured the suspect that it was safe, there is no unfairness for either rule to correct, and the silence is evidence the prosecution generally may offer.⁵

Step three does the real work. The first two steps place the silence in time and identify its user, but the third asks the question on which the two sources diverge, which is why the person said nothing. A silence induced by the privilege at trial and a silence induced by a warning can look identical on the page of a problem, and only the history of what the state said or did beforehand separates them. Students who sort on the arrest rather than the warnings reach the wrong answer for every silence that followed arrest but preceded the warnings.

Silence at trial is the easiest category to recognize. Griffin bars the prosecutor and the trial judge from commenting on a defendant's failure to testify, and bars using that silence as substantive evidence of guilt.⁶ Carter v. Kentucky adds the remedy: upon timely request, a defendant who does not testify is entitled to an instruction that the jury must not draw any adverse inference from that choice.⁷ The two rules guard different points in the trial. The ban on comment keeps the argument out of the courtroom, while the instruction answers the inference a jury may draw without any prompting. The difficulty in trial-silence problems lies in the line between commenting on the defendant and commenting on the defense. Telling the jury that the defendant has not explained away the evidence violates Griffin, while observing that the defense has left evidence uncontradicted is usually permissible, unless the jury would reasonably conclude that only the defendant could have contradicted it.

The first argument points at the defendant's own choice to stay off the stand, so it is the comment Griffin forbids and the answer is yes.⁸ The second argument points at proof that other people could have supplied, so it asks the jury to notice a gap in the defense case without inviting an inference from the defendant's silence, and it is generally permissible. The variable is whom the argument says should have spoken.

Silence after warnings is the second category, and the bar here comes from the state's own conduct. Doyle v. Ohio barred the prosecution from impeaching a testifying defendant with silence under custodial questioning after the Miranda warnings.⁹ Wainwright v. Greenfield applied the same reasoning when the prosecution offered a defendant's post-warning refusal to talk as evidence that he was sane, holding that the use violated the implicit assurance that silence carries no penalty.¹⁰ Because the bar rests on that assurance, it reaches a request for counsel as readily as muteness, since silence in this setting includes a statement that the suspect wants to remain silent until an attorney has been consulted.¹¹

The first suspect's silence followed warnings that implied it would carry no penalty, so the question is barred and the answer is yes.¹² The second suspect's silence preceded any warning, and the Court has held that due process is not violated by impeachment with silence after arrest but before the warnings, as in Fletcher v. Weir.¹³ The two differ only in whether the state had yet delivered the assurance, which is why the warnings, and not the arrest, mark the line.

Where neither the privilege's compulsion nor the warnings induced the silence, the answer is no. The Court has allowed impeachment with silence before arrest in Jenkins v. Anderson, and with a suspect's actual statements after the warnings in Anderson v. Charles, because what the warnings promise concerns silence and a spoken answer breaks no promise about it.¹⁴ The same footnote places a refusal to take a state test that involves no Miranda-like warnings on the permitted side, as South Dakota v. Neville held.¹⁵ Silence during voluntary, non-custodial questioning follows the pattern. In Salinas v. Texas a suspect who answered some questions and then cut off the questioning on a pointed one, without saying that he relied on the privilege, could have that silence put before the jury.¹⁶ Whether the result changes when a suspect in that setting does expressly invoke the privilege remains unresolved.¹⁷

Not every silence that reaches a jury is a defendant's silence toward the government, and step one exists to catch that. When a companion describes a crime in the defendant's presence and the defendant says nothing, the prosecution may offer the silence as an adoptive admission under Federal Rule of Evidence 801(d)(2)(B) if the defendant would naturally have denied the account were it untrue, as in United States v. Fortes.¹⁸ That is first an evidentiary question about probable human behavior, and its difficulty in criminal cases comes from the chance that the silence reflects advice of counsel or awareness that anything said may be used against the person.¹⁹ A witness other than the defendant presents a separate problem. In Douglas v. Alabama a witness invoked the privilege while the prosecutor read a confession implicating the defendant, and the Court recognized that the jury might improperly infer from the invocation both that the statement had been made and that it was true.²⁰

The second edge check concerns the setting. Griffin applies directly only to criminal cases and only to the defendant's right to stay off the stand, so comment in other settings is left to other law.²¹ Comment on a civil party's invocation is usually permissible, although state law varies.²² In Baxter v. Palmigiano the Court allowed an adverse inference from an inmate's silence at a prison disciplinary hearing, while emphasizing that the guilty finding could not rest on the silence alone.²³ At the other end of a criminal case, Mitchell v. United States bars a sentencing judge from inferring facts about the crime from a defendant's silence at sentencing, so the no-inference principle reaches past the verdict.²⁴

Run on a fresh problem, the method returns to the two questions that opened the leaf. Whether the privilege applies depends on the setting and on whether the person was compelled to speak. Whether silence may be treated as evidence of guilt depends on who is using it, when it occurred, and what induced it, and the Review below collects both.