No. 12-246 IN THE SUPREME COURT OF THE UNITED STATES GENOVEVO SALINAS, Petitioner, vs. STATE OF TEXAS. Respondent. On Writ of Certiorari to the Court of Criminal Appeals of Texas Brief of Wayne County, Michigan as Amicus Curiae in Support of Respondent KYM L. WORTHY Prosecuting Attorney County of Wayne *TIMOTHY A. BAUGHMAN Chief of Research, Training And Appeals 1441 St. Antoine Detroit, MI 48226 Phone: (313) 224-5792 E-Mail: [email protected]* Counsel of Record for Amicus
Transcript
No. 12-246
IN THE
SUPREME COURT OF THE UNITED STATES
GENOVEVO SALINAS, Petitioner, vs.
STATE OF TEXAS. Respondent.
On Writ of Certiorari to the Court of Criminal Appeals of Texas
Whether or under whatc i r c u m s t a n c e s t h e F i f t hAmendment’s Self-IncriminationClause protects a defendant’srefusal to answer law enforcementquestioning before he has beenarrested or read his Mirandarights.
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Table of Contents
Statement of the Question........................................i
Index of Authorities.................................................iii
Interest of the Amicus.............................................1
Summary of Argument............................................2
A. The Fifth Amendment in History............3B. Silence.......................................................8 (1) The unintelligibility of a “right to
silence”................................................8 (2) Evidentiary use of silence.................11 (3) Silence as substantive evidence
Arizona v Gant,556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)........................................15
Brecht v Abrahamson,507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)........................................12
Colorado v Connelly,479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986)............................................9
Combs v. Coyle,205 F.3d 269 (CA 6,. 2000).....................................16
Coppola v. Powell,878 F.2d 1562 (CA 1, 1989)....................................16
Crawford v. Washington,541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).........................................15
Doyle v Ohio,426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)............................12,13, 14, 15
United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973).............................................3
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Fletcher v Weir,455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982)......................................11,12
Griffin v California,380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)...............................13, 14, 14
Jenkins v Anderson,447 U.S. 231, 100 S. Ct. 2124, 85 L. Ed. 2d 86 (1980).............................................11
Mitchell v United States,526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).....................................5, 14
Montejo v Louisiana,556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009).........................................15
New Jersey v Portash,440 U.S. 450, 99 S. Ct. 1292, 59 L. Ed. 2d 501 (1979)...........................................18
Ouska v. Cahill- Masching,246 F.3d 1036 (CA 7, 2001)....................................16
Portuondo v Agard,529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000)...............................12, 14, 15
United States ex rel. Savory v. Lane,832 F.2d 1011 (CA 7, 1987)....................................16
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United States v. Burson,952 F.2d 1196 (CA 10,. 1991).................................16
United States v. Campbell,223 F.3d 1286 (CA 11, 2000)..................................16
United States v. Caro,637 F.2d 869 (CA 2,. 1981).....................................16
United States v. Hernandez,948 F.2d 316 (CA 7, 1991)......................................16
United States v. Oplinger, 150 .3d 1061 (CA 8, 1998)......................................16
United States v. Rivera,944 F.2d 1563 (CA 11, 1991).................................16
United States v Velarde-Gomez,269 F.3d 1023 (CA 9, 2001)..............................16, 19
United States v Whitehead,200 F.3d 634 (CA 9, 2000).................................14, 16
United States v Zanabria,74 F.3d 590 (CA 5, 1996)........................................16
Vick v. Lockhart,952 F.2d 999 (CA 8, 1991)......................................16
State Cases
People v McReavy,436 Mich. 197, 462 N.W.2d 1 (1990)......................19
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People v Schollaert,194 Mich. App. 158, 486 N.W.2d 312 (1992)..........19
Other
Alschuler, "A Peculiar Privilege in HistoricalPerspective: The Right to Remain Silent," 94Mich. L. Rev. 2625, 2638 (1994)...............................7
Friendly, Benchmarks, p. 271 (1967).......................8
Grano, Confessions, Truth, and the Law (1993).........................................................3,8,10
Langbein, The Privilege and Common LawCriminal Procedure, in The Privilege Against Self-Incrimination 82, 92 (Helmholz et al. eds.1997)..................................................................14
Levy, The Origins of the Fifth Amendment (2d Ed) (MacMillan: 1986)...................5
Rossum, “‘Self-Incrimination’: The Original Intent,” in Hickok, ed., The Bill ofRights: Original Meaning and CurrentUnderstanding (University of Virginia Press: 1991).........................................................................3
J. Stephen, 1 History of the Criminal Law ofEngland 440 (1883)..................................................5
Wigmore, "The Privilege Against Self-Incrimination: Its History," 15 Harv. L. Rev. 610,621-24 (1902)........................................................5, 7
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Interest of the Amicus
Amicus is the County of Wayne, Michigan.Wayne County is the largest County in the State ofMichigan, and the criminal division of WayneCounty Circuit Court is among the largest andbusiest in the entire United States. The WayneCounty Prosecuting Attorney, charged by statestatutes and the State Constitution withresponsibility for litigating all criminalprosecutions within her jurisdiction, has a vitalinterest in the outcome of the current litigation, asit may well affect the execution of herconstitutional and statutory duties. And, asindicated in the brief, Michigan law currently holdsthat use of pre-arrest silence of the accusedsubstantively violates no constitutional right.
As the legal representative of a unit of stategovernment, Supreme Court Rule 37 permitsAmicus to file a supporting brief withoutpermission of the parties. No party or counselconnected with a party contributed any fundstowards this brief nor contributed in any way to itswriting.
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Summary of Argument
The Fifth Amendment, both in its text andits history, protects citizens from being “compelled”to be “witnesses against” themselves. The sine quanon for involvement of the Fifth Amendment isthus coercive governmental activity.
There is no such thing as a “right to silence.”There is, rather, a right not to be compelled tospeak. “Right to silence” is not simply a shorthandfor “right not to be compelled,” as the former, whichis not the text of the Fifth Amendment, raisesissues of knowing and intelligent waiver, while theright protected by the Fifth Amendment isunwaivable (one cannot agree to be coerced). If aright to silence existed, noncustodial admissions togovernmental officials, initiated by the confessor,would be inadmissible without a showing of aproper waiver of the “right to silence.”
When one speaks or remains silent in theabsence of governmental compulsion to do either,the Fifth Amendment is irrelevant. Admission ofevidence of silence that is not compelled raises noconstitutional question, being purely a matter ofstate evidentiary law. The Criminal Court ofAppeals of Texas should thus be affirmed.
1 Joseph Grano, Confessions, Truth, and the Law
(University of Michigan Press: 1993), p.143.
2 United States v. 12 200-Foot Reels of Super
8mm. Film, 413 US 123, 127, 93 S.Ct. 2665, 668, 37 L
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Argument
Prearrest Silence May be Used AsSubstantive Evidence
A. The Fifth Amendment in History
"...the Fifth Amendment actuallymeans what it says."1
It is generally wise to begin consideration ofthe meaning of a constitutional text by reviewingthe actual language of the constitutional provisionat issue, for reference only to the judicial glosswhich has been given the relevant language canlead one far astray. As has been noted in a differentcontext,
The seductive plausibility of singlesteps in a chain of evolutionarydevelopment of a legal rule is often notperceived until a third, fourth, or fifth‘logical’ extension occurs. Each step,when taken, appeared a reasonablestep in relation to that which precededit, although the aggregate or endresult is one that would never havebeen seriously considered in the firstinstance.2
Ed 2d 500 (1973).
3 See Ralph Rossum, “‘Self-Incrimination’: The
Original Intent,” in Hickok, ed., The Bill of Rights:
Original Meaning and Current Understanding
(University of Virginia Press: 1991), p .276.
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Amicus thus begins with the relevant text.
No person . . . shall be compelled inany criminal case to be a witnessagainst himself, . . . .
A discussion of the permissibility oftestimony regarding silence of the defendant,whether before arrest, after arrest, or during trial,as against the protection of the Fifth Amendmentagainst compelling one to be a “witness againsthimself,” seems odd when one takes account ofhistory. Though it seems almost astounding today,at the time of the Founding, and of the ratificationof the Bill of Rights, no state even permitted, muchless compelled, an accused in a criminal case totestify. It was not until 1864 that Maine becamethe first state to permit criminal defendants totestify, and Congress followed suit in 1878.3 Butcriminal defendants were not actually silent attheir trials, they simply were not competent assworn witnesses. Instead, the defendant waspermitted—and expected—to give an unswornstatement at trial on his own behalf, and was alsoexpected to give a statement pretrial. The failureto make a statement to the justice of the peace
4 Langbein, “The Privilege and Common Law
Criminal Procedure,” in The Privilege Against Self-
Incrimination, quoted by Justice Scalia, dissenting, in
Mitchell v United States, 526 US 314, 119 S Ct 1307,
143 L Ed 2d 424 (1999).
5 J. Stephen, 1 History of the Criminal Law of
England 440 (1883).
6 See Levy, The Origins of the Fifth Amendment
(2d Ed) (MacMillan: 1986).
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would be reported to the jury.4 As Sir JamesStephen noted, evidence given against thedefendant operated as “so much indirectquestioning,” and if the defendant “omitted toanswer the questions it suggested he was verylikely to be convicted.”5 If, then, a defendant wasnot permitted to be a witness at trial, but wasexpected to make unsworn statements, the failureto do so to be held against him, why, then, theinclusion of the Fifth Amendment protectionagainst compelled self-incrimination in criminalcases?
Some scholars, Leonard Levy principalamong them, take the view that the Founders, andthe members of state constitutional conventionswhich enacted similar protections on which theFifth Amendment was based, “failed to say whatthey meant,” for if they meant what they said, thenthe common-law prohibition on testimony from theaccused in criminal cases rendered the FifthAmendment superfluous.6 Instead, concluded Levy,what those individuals drafting state Bill of Rightsand the Fifth Amendment actually meant to do was
7 See Rossum, at 276.
8 Rossum, at 277.
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adopt the common-law right of nemo teneturseipsum acusare (no one is bound to accusehimself), which protected not only against courts incriminal cases but against all of government, in allkinds of actions, protecting witnesses as well as theaccused, and protecting against “threats of criminalliability, civil exposure, and public obloquy.”7 Thisredrafting of the Fifth Amendment is not tenable.
Professor Rossum nicely notes that Levy andhis followers fail to take account of the very realprobability—given the express language of theFifth Amendment—that the drafters were notwriting to “end some current abuse but simply toprovide a floor of constitutional protection abovewhich the common law was free to operate butbelow which it could not go.”8 Though it seemsquaint now, during the 17th century the very givingof an oath was held itself to be a coercive act, andthe ecclesiastical Court of High Commissionengaged in the practice of summoning those withnonconformist opinions and requiring them to takean oath and answer questions. Refusing the oathresulted in contempt and Star Chamberproceedings; lying under oath was perjury; tellingthe truth under oath could subject one toprosecution for political and religious crimes. Thecelebrated trial of John Lilburne, a Puritan agitatorwho refused to take the oath, led to the prohibitionof the administration of any oath obliging a person“to confess or accuse himself or herself of any
9 See Wigmore, “The Privilege Against Self-
Incrimination: Its History,” 15 Harv L Rev 610, 621-24
(1902).
10 Alschuler, “A Peculiar Privilege in Historical
Perspective: The Right to Remain Silent,” 94 Mich L
Rev 2625, 2638 (1994).
11 See Alschuler, at 2648.
12 Alschuler, at 2631.
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crime.”9 Professor Albert Alschuler concludes thatthe history of the Fifth Amendment is “almostentirely a story of when and for what purposespeople would be required to speak under oath.”10
Requiring an oath of the criminally accusedwas coercive, and banned for that reason, as beingequivalent to torture and the rack. Manuals whichinstructed justices of the peace on the conduct oftheir office warned, from the late 16th centurythrough the mid- 19th century, that “[t]he law ofEngland is a Law of Mercy, and does not use theRack or Torture to compel criminals to accusethemselves....I take it to be for the Same Reason,that it does not call upon the Criminal to answerupon Oath. For, this might serve instead of theRack, to the Consciences of Some Men, althoughthey have been guilty of offenses....”11 To put thematter finely, then, the purpose of the FifthAmendment, when understood in its historicalcontext, was “to outlaw torture and impropermethods of interrogation,” including the compellingof testimony under oath.12 Put another way, thepurpose of the Fifth Amendment was to preclude
13 Though amicus believes that consideration of
the voluntariness of extra-judicial confessions is a
matter of due process, rather than the Fifth
Amendment, see generally, Grano, Confessions, Truth,
and the Law (1993), that distinction appears to have
been lost in the decisions, and is not important for
purposes here.
14 H. Friendly, Benchmarks, p. 271 (1967)
(emphasis in the original).
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the obtaining of statements or testimony from theaccused in criminal cases by use of coercivegovernmental conduct.13
B. Silence
. . . on any view the Fifth Amendmentdoes not forbid the taking ofstatements from a suspect; it forbidscompelling them. That is what thewords say, and history and policyunite to show that is what they meant.Rather than being a ‘right of silence,’the right, or better the privilege, isagainst being compelled to speak. Thedistinction is not mere semantics; itgoes to the very core of the problem.14
(1) The unintelligibility of a “right tosilence”
A large part of the analytical difficulty inconsidering the Fifth Amendment and admissibilityof silence is the transmogrification of the right not
15 Colorado v Connelly , 479 US 157, 107 S Ct 515,
93 L Ed 2d 473 (1986).
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to be compelled to be a witness against oneself intoa “right to remain silent.” The latter is not simply ashorthand expression for the former, as recognizedby Judge Friendly, as it imports necessarily awaiver analysis foreign to the text and history ofthe Fifth Amendment. The sine qua non forinvolvement of the Fifth Amendment is coercivegovernmental conduct.15 In the absence of coerciveconduct by a governmental official, the fact that anindividual speaks or does not speak, whether tosome other "ordinary citizen" or even to agovernmental official, has nothing to do with theConstitution. When one speaks voluntarily, he orshe is not waiving his or her Fifth Amendmentright not to be compelled to speak, the only rightprotected by the Fifth Amendment; rather, thespeech is voluntary. If coerced, and by agovernmental agent, the Fifth Amendment applies.But plainly no one, in speaking with agovernmental agent, is saying, in effect: “Yes, Iunderstand that I have a right not be compelled tospeak, but I choose to waive that right, and wish tobe compelled to speak, so you may now proceed toengage in some coercive activity in order to gain myverbal cooperation.” Rather, if the consent to speakis not voluntary, then the individual has beencompelled, and his or her statements are barredfrom admission at trial. But it is logicallyimpossible to waive the right not to be compelled tospeak, and this is what the Constitution protects,not any free floating "right to silence" withoutregard to coercive governmental conduct. There is
16 As Professor Grano has cogently put the
matter, “. . .while the notion of waiving a right to
silence is intelligible, the notion of waiving the a right
not to be compelled, especially when compel is a
synonym for coerce, is not . . . . If the Fifth Amendment
really conferred a substantive or formal right of silence,
the police, contrary to what even Miranda recognized,
might have to stop and caution ‘a person who enters a
police station and states that he wishes to confess,’ for
the issue whether the right to silence was knowingly
waived would be present in all such cases.” Grano,
Confessions, Truth, and the Law, at 142.
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no right to silence which must be waived knowinglyand intelligently, there is an unwaivable right notto be coerced.16
A hypothetical situation demonstrates thispoint as well. Under the First Amendment, noperson may be forced by the government to pray orto attend church. When millions of citizens choosevoluntarily to pray or to attend the church of theirchoice, are they thereby surrendering their "rightnot to pray" or "right not to attend church," andmust they do so knowingly and intelligently in theconstitutional sense? Of course not: the questionmakes no sense unless in the context of a claim ofgovernmental coercion. There is no "right not topray," or "right not to go to church" under theConstitution, there is rather a right not to be forcedto do either by the government (or to be forced torefrain from either). There is also no "right toremain silent"; instead, there is a right not to becompelled to speak by the government, andspeaking in the absence of compulsion is no more
17 Jenkins v Anderson, 447 US 231, 241, 100 S Ct
2124, 2131, 85 L Ed 2d 86 (1980)(Stevens, J.,
concurring).
18 Jenkins v Anderson, supra.
19 Fletcher v Weir, 455 US 603, 102 S Ct 1309, 71
L Ed 2d 490 (1982).
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the waiver of a constitutional right than is prayingor attending church without compulsion.
(2) Evidentiary use of silence
Justice Stevens statement concurring inJenkins17 that “....the privilege against compulsoryself-incrimination is simply irrelevant to a citizen'sdecision to remain silent when he is under noofficial compulsion to speak” is both cogent andcorrect. This Court has never held that commenton silence before arrest,18 after arrest but beforeMiranda warnings,19 or after arrest and afterMiranda warnings, violates the Fifth Amendment.The Court, rather, has held that only comment onsilence after arrest and after Miranda warningsviolates due process:
while it is true that the Mirandawarnings contain no expressassurance that silence will carry nopenalty, such assurance is implicit toany person who receives the warnings.In such circumstances, it would befundamental ly unfair and adeprivation of due process to allow thearrested person's silence to be used to
20 Doyle v Ohio, 426 US 610, 618-619, 96 S Ct
2240,2245, 49 L Ed 2d 91 (1976). But see Portuondo v
Agard , 529 US 61, 120 S Ct 1119, 146 L Ed 2d 47
(2000), where the Court, in upholding comment that
petitioner testified after his witnesses giving him the
opportunity to tailor his testimony, said that “Although
there might be reason to reconsider Doyle, we do not do
so here.”
21 Brecht v Abrahamson , 507 US 619, 628, 113 S
Ct 1710, 123 L Ed 2d 353 (1993).
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impeach an explanation subsequentlyoffered at trial.20
But where an “implicit assurance” that silence willnot be used in any ways is not given—that is, thecomment is on silence even after arrest but beforeMiranda warnings—no constitutional issue arises.
In Fletcher v Weir petitioner was cross-examined regarding why, after arrest but beforeMiranda warnings, he had not offered theexculpatory version of events that he had offered attrial, and in Brecht v Abrahamson21 the Courtobserved that “the Constitution does not prohibitthe use for impeachment purposes of a petitioner’ssilence prior to arrest..., or after arrest if noMiranda warnings are given....Such silence isprobative and does not rest on any impliedassurance by law enforcement authorities that itwill carry no penalty.”
22 Doyle v Ohio , 426 US 610, 96 S Ct 2240, 49 L
Ed 2d 91 (1976).
23 Griffin v California, 380 U.S. 609, 85 S.Ct.
1229, 14 L.Ed.2d 106 (1965).
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The rule of Doyle v Ohio22 is built on Griffinv California,23 which bars comment on thedefendant’s decision not to testify on the basis thatsuch comments violate the Fifth Amendment. Thisnotion is, as indicated above, contrary to the textand history of the Amendment. To reiterate,pretrial procedure in colonial America wasgoverned by the Marian Committal Statute, whichprovided:
[S]uch Justices or Justice [of thepeace] before whom any person shallbe brought for Manslaughter orFelony, or for suspicion thereof, beforehe or they shall commit or send suchPrisoner to Ward, shall take theexamination of such Prisoner, andinformation of those that bring him, ofthe fact and circumstance thereof, andthe same or as much thereof as shallbe material to prove the Felony shallput in writing, within two days afterthe said examination....
The justice of the peace testified at trial as to thecontent of the defendant's statement; if thedefendant refused to speak, this would also have
24 Langbein, The Privilege and Common Law
Criminal Procedure, in The Privilege Against Self-
Incrimination 82, 92 (Helmholz et al. eds.1997).
25 See See, e.g., Fourth Report of the
Commissioners on Practice and Pleadings in New York-
Code of Criminal Procedure xxviii (1849); 1 Complete
Works of Edward Livingston on Criminal Jurisprudence
356 (1873), referenced by Justice Scalia in Mitchell. See
also Justice Scalia’s further discussion of the illogic of
the Griffin decision, concluding that Griffin was a
“wrong turn” in constitutional jurisprudence, and
Justice Thomas’‘s call for a “reexamination” of Griffin in
his opinion in Mitchell.
26 Doyle, at 426 U.S. 610, 621, 96 S.Ct. 2240, 2246
(Stevens, J., dissenting).
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been reported to the jury.24 And Justices of thepeace continued pretrial questioning of suspects,whose silence continued to be introduced againstthem at trial, after the ratification of the FifthAmendment.25
Doyle’s decision to ban reference to anaccused’s silence after receiving Miranda warningswas not without its dissenters. Justice Stevensobjected that “there is nothing deceptive orprejudicial to the defendant in the Mirandawarning. Nor do I believe that the fact that suchadvice was given to the defendant lessens theprobative value of his silence, or makes theprosecutor's cross-examination about his silenceany more unfair than if he had received no suchwarning.”26 And the majority in Portuondo v Agard,permitting comment on defendant’s presence in the
27 Portuondo v. Agard, 529 U.S. 61, 74, 120 S.Ct.
1119, 1128 (2000) (emphasis added).
28 This undertaking should not be blocked by
principles of stare decisis. See Arizona v Gant, 556 US
332, 129 S Ct 1710, 173 L Ed 2d 485 (2009); Montejo v
Louisiana, 556 US 778, 129 S Ct 2079, 173 L Ed 2d 955
(2009), and especially Crawford v. Washington, 541 US
36, 124 S Ct 1354, 158 L Ed 2d 177 (2004),
demonstrating that this Court has, on occasion,
revisited its jurisprudence on concluding that its
holdings have become divorced from the original
understanding of the right at issue.
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courtroom throughout all the testimony, observedthat “Although there might be reason to reconsiderDoyle, we need not do so here.”27 But Griffin and itsprogeny, including Doyle, stray so far from text andhistory that revisiting them, and overruling at leastDoyle, is appropriate.28
Because the defendant here was under noofficial compulsion either to speak or to remainsilent, evidence of and comment on his silence doesnot implicate the Fifth Amendment in any way;because the comment was on silence beforeMiranda warnings were given or required, thecomments and testimony do not implicate dueprocess. The question of admissibility is entirelyan evidentiary one under state law.
29 The First, Second, Sixth, Seventh, and Tenth
Circuits have held that substantive use of silence that is
permissible for impeachment violates the constitution;
on the other hand, the Fifth, Eighth, Ninth and
Eleventh Circuits have held to the contrary, though the
Ninth Circuit has held that post-arrest/pre-Miranda
silence cannot be used substantively. See United States
ex rel. Savory v. Lane, 832 F2d 1011 (CA 7, 1987);
United States v. Hernandez, 948 F2d 316 (CA 7, 1991);
Ouska v. Cahill- Masching, 246 F3d 1036 (CA 7, 2001);
Coppola v. Powell, 878 F2d 1562, 1568 (CA 1, 1989);
United States v. Burson, 952 F2d 1196, 1201 (CA 10,.1991) ; United States v. Caro, 637 F2d 869 (CA 2,. 1981);
Combs v. Coyle, 205 F3d 269 (CA 6,. 2000); but compare
United States v. Rivera, 944 F2d 1563 (CA 11, 1991);
United States v Zanabria, 74 F3d 590 (CA 5, 1996);
United States v. Campbell, 223 F3d 1286 (CA 11, 2000);
Vick v. Lockhart, 952 F2d 999 (CA 8, 1991) ; United
States v. Zanabria, 74 F3d 590, 593 (CA 5, 1996); United
States v. Oplinger, 150 .3d 1061 (CA 8, 1998). The
Ninth Circuit has now held that only pre-arrest silence
is admissible as substantive evidence, but not post-
arrest/pre-Miranda silence, which is admissible only for
impeachment. See United States v Whitehead, 200 F3d
634 (CA 9, 2000); United States v Velarde-Gomez, 269
F3d 1023 (CA 9, 2001).
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(3) Silence as substantive evidence inthe federal circuits
Federal circuits are divided on the questionof whether silence that, when used forimpeachment violates nothing in the constitution,violates the constitution when used as substantiveevidence.29 And there is a difference between use of
30 “The information given in response to a grant
of immunity may well be more reliable than information
beaten from a helpless petitioner, but it is no less
compelled. ...we deal with the constitutional privilege
against compulsory self-incrimination in its most
pristine form. Balancing, therefore, is not simply
unnecessary. It is impermissible....A person's testimony
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evidence of any sort to establish the State’s case-in-chief as opposed to the use of evidence in theState’s case-in-chief, a point missed by some casesand commentators. Though use of the defendant’spre-arrest or post-arrest but pre-Miranda silencegenerally occurs either on cross-examination of thepetitioner or in rebuttal to impeach his or hercredibility, or in the case-in-chief as substantiveevidence, generally in the context that silenceindicates an admission or acquiescence, it is quitepossible for silence to be employed as impeachmentof the exculpatory (and false) statement made bythe defendant to the police.
But even where silence of the petitioner isemployed as substantive evidence in the case-in-chief, not to impeach the defendant or his defense,but to prove the case-in-chief, how can evidencethat violates no constitutional principle whenadmitted as impeachment violate a constitutionalprinciple when employed as substantive evidence?After all, evidence taken in violation of the “actual”Fifth Amendment; that is, that is compelled, evencompelled as a matter of law through a grant ofimmunity rather than through the use of physicalforce, is admissible for no purpose, not evenimpeachment.30
before a grand jury under a grant of immunity cannot
constitutionally be used to impeach him when he is a
petitioner in a later criminal trial.” New Jersey v
Portash, 440 US 450, 459, 99 S Ct 1292, 1297, 59 L Ed
2d 501 (1979).
31 See United States v Whitehead, supra.
32 See United States v Velarde-Gomez, supra.
33 People v McReavy, 436 Mich 197, 462 NW2d 1(1990).
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Those courts that have concluded that eitherpre-arrest or post-arrest/pre-Miranda silence (orboth) cannot be employed as substantive evidencehave fallen into the analytical error oftransmogrifying the right against compelled self-incrimination into a right to silence. The NinthCircuit, for example, has said that any silence afterarrest, even before Miranda warnings and beforequestioning by the police, is an “exercise of theright to silence,” comment upon which assubstantive evidence is unconstitutional31—andnote that even this holding would not apply here,as the defendant was not under arrest at the timeof his silence to the particular question involvedhere. That court has not explained how the FifthAmendment violation that occurs when theevidence is used substantively disappears when itis used for impeachment. By this analysis thatcourt has excluded what is often called “demeanorevidence” when used substantively, on the groundthat demeanor coupled with silence is a part of theexercise of the “right to silence,”32 an error that theMichigan Supreme Court has avoided.33
34 People v Schollaert, 194 Mich App 158, 166-
167, 486 NW2d 312 (1992).
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The Michigan Court of Appeals in People vSchollaert captured the essence of theconstitutional implications of “silence”:
In the present case, defendant'ssilence or non-responsive conduct didnot occur during a custodialinterrogation situation, nor was it inreliance on the Miranda warnings.Therefore, we believe that defendant'ssilence, like the "silence" of thedefendant in McReavy, was not aconstitutionally protected silence. Onthe basis of our reading of theMichigan Constitution, together withdevelopments in Fifth and FourteenthAmendment jurisprudence, wec o n c l u d e t h a t d e f e n d a n t ' sconstitutional rights were not violatedwhen evidence of his silence wasadmitted as substantive evidence.34
As the court recognized, for “silence” to implicateeither the Fifth Amendment or due process thatsilence must be in reliance on Miranda warnings,or during custodial interrogation (where Mirandawarnings should have been given and waived as acondition precedent to the questioning). Theadmissibility of silence that is unrelated to anyofficial compulsion to speak is, as a matter ofconstitutional law, simply a matter of state
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evidentiary law. The Criminal Court of Appeals ofTexas should be affirmed.
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Conclusion
Wherefore, the Petitioner submits that theCourt of Criminal Appeals of Texas should beaffirmed.
Respectfully submitted,
Kym L. WorthyProsecuting AttorneyCounty of Wayne
TIMOTHY A. BAUGHMANChief, Research, Training, andAppeals1441 St. AntoineDetroit, MI 48226313 224-5792
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