Post-Arrest Silence and Invocation of Right to Counsel

Greer v. Miller, 483 U.S. 756 (1987)

In this murder prosecution, the state prosecutor asked the defendant why he did not give his version of the story to the police at the time of arrest. An objection by the defendant was sustained and the judge told the jury to disregard the question. The United States Supreme Court holds that this does not constitute a violation of Doyle v. Ohio, 426 U.S. 610 (1976), because the defendant’s silence was not used against him. The state trial court specifically ruled that evidence inadmissible and told the jury to disregard the statement. Thus, the question, though improper, constitutes harmless error.

United States v. Shannon, 766 F.3d 346 (3rd Cir. 2014)

The prosecutor was permitted to ask the defendant, on cross-examination, whether he had ever told anybody about his exculpatory version of the facts. This violated Doyle, because it amounted to a comment on his post-arrest, post-Miranda silence. It matters not that some of the questions were directed to his pre-arrest silence. Even a couple questions about post-Miranda silence may violate Doyle’s prohibition.

Ford v. Wilson, 747 F.3d 944 (7th Cir. 2014)

Doyle v. Ohio, 426 U.S. 610 (1976) prohibits impeaching a defendant with the defendant’s post-Miranda silence (i.e., “You didn’ tell this story after you were arrested, did you?”). In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that a prosecutor may not comment during closing argument about the defendant’s failure to testify at trial. Both of these decisions address the improper suggestion that invoking the Fifth Amendment can be costly to the defendant. Griffin, however, is subject to exceptions if the defense attorney’s closing argument raises the issue and the prosecutor is simply responding. United States v. Robinson, 485 U.S. 25 (1988). In this case, the defendant was charged with murder. The defense attorney argued in his closing that the prosecutor failed to prove any motive why the defendant would kill the victim. In response, in his closing, the prosecutor argued that there were only two people were there who could explain what happened and one of them was dead. “The next possible source is the person who committed the offense. If that person who committed the offense don’t talk, how would we ever know?” In this habeas, case, the Seventh Circuit ultimately held that habeas relief was not required for procedural reasons.

United States v. Andaverde-Tinoco, 741 F.3d 509 (5th Cir. 2013)

The prosecutor improperly referenced the defendant’s post-arrest silence during closing argument in an effort to imply that this disproved the defendant’s defense that he was justified in illegally crossing the border after being beaten and robbed before crossing the Rio Grande. Not plain error, however.

Jaradat v. Williams, 591 F.3d 863 (6th Cir. 2010)

The state court prosecutor elicited testimony from the arresting officer that the defendant invoked his right to counsel rather than answering any questions and that he always wants to hear both sides of the story, but the defendant did not tell his side of the story and never admitted that he had sexual contact with the victim (at trial, the defendant contended that the sexual contact was consensual). The Sixth Circuit held that this testimony represented a direct comment on the the defendant’s post-arrest silence and were impermissible under Doyle. Harmless error.

United States v. Waller, 654 F.3d 430 (3rd Cir. 2011)

The trial court instructed the jury that in ascertaining the defendant’s intent, it could consider any statements made or omitted by the defendant. The defendant had invoked his right to remain silent when he was arrested. This instruction was an improper invitation to consider the defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976). Conviction reversed.

Gov’t. of Virgin Islands v. Davis, 561 F.3d 159 (3rd Cir. 2009)

The prosecutor cross-examined the defendant about his failure to make a statement to the police post-arrest/post-Miranda. Reversible error.

United States v. Gentry, 555 F.3d 659 (8th Cir. 2009)

The defendant claimed at trial that the drugs in the car belonged to someone else. She made no such statement to the police when she was arrested. Cross-examining her about this failure to alert the police about the real culprit was reversible error. A defendant may not be impeached with her post-arrest silence, or failure to provide exculpatory information.

United States v. Caruto, 532 F.3d 822 (9th Cir. 2008)

Generally, a defendant who invokes his Miranda rights may not be impeached by evidence that he invoked his rights or that he remained silent. Doyle v. Ohio, 426 U.S. 610 (1976); Wainwright v. Greenfield, 474 U.S. 284 (1986). In this case, the defendant started making a statement – waiving her right to remain silent – but then stopped and invoked her right to remain silent. At trial, when she was cross-examined, she expanded on her statement. The prosecutor then cross-examined her, pointing out that various facts included in her testimony at trial were not included in her statement to the police. The “omission” was the result of her invocation of the right to remain silent. In other words, the only way the defendant could explain that certain portions of her trial testimony were omitted from her statement to the police, was to explain that she invoked her right to remain silent. The Ninth Circuit held that in this limited circumstance, the prosecutor should not be permitted to cross-examine the defendant about the omitted portion of the statement.

United States v. Andujar-Basco, 488 F.3d 549 (1st Cir. 2007)

If a defendant initially waives his right to remain silent and begins answering questions, he still retains the right to terminate questioning and invoke his right to remain silent. If he does so, the government may not introduce the subsequent invocation of his right to remain silent at trial.

United States v. Hernandez, 476 F.3d 791 (9th Cir. 2007)

Introducing the defendant’s post-arrest, pre-Miranda silence, when asked, “What is this?” by an officer who was holding up a brick of cocaine, was error. Harmless error.

United States v. Lopez, 500 F.3d 840 (9th Cir. 2006)

The defendant claimed that he fled across the border into the United States to avoid being killed by a Mexican drug dealer. The AUSA cross-examined him about his failure to make this claim when he was apprehended by border patrol agents. The question arguably included post-arrest/post-Miranda silence. This was an improper comment on his right to remain silent. Harmless error.

People of Territory of Guam v. Veloria, 136 F.3d 648 (9th Cir. 1998)

The government called to the stand a police officer who arrested the defendant. The only testimony elicited from the officer was that the defendant invoked his right to remain silent and his right to counsel. This was plain error.

Hill v. Turpin, 135 F.3d 1411 (11th Cir. 1998)

Repeatedly during the course of trial, the prosecutor made reference to the defendant's invocation of his right to counsel, and to remain silent, after receiving Miranda warnings. This violated the rule of Doyle v. Ohio, 426 U.S. 610 (1976) and required setting aside the death penalty conviction.

Brown v. Dugger, 831 F.2d 1547 (11th Cir. 1987)

It was improper for the prosecutor to make reference during his closing argument to the defendant’s silence in the face of accusatory statements made by his co-defendant when the police put the two together in a room. The Court further holds that this argument was not “invited” by any statements of defense counsel.

Matire v. Wainwright, 811 F.2d 1430 (11th Cir. 1987)

During closing argument, the prosecutor referred to the defendant’s silence after having been warned of his Miranda rights. The government argued that evidence of post-arrest silence was probative on the defendant’s insanity defense. The Eleventh Circuit reverses on the basis of this Fifth Amendment violation.

Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989)

Prior to his arrest and prior to being placed in custody, the defendant invoked his privilege against self-incrimination in a “bragging tone of voice.” The trial court committed reversible error in allowing a trooper to describe the defendant’s invocation of his privilege.

United States v. Szymaniak, 934 F.2d 434 (2d Cir. 1991)

After being arrested, the defendant stated, “I’m in a lot of trouble and I want to speak to my lawyer.” The government introduced this statement into evidence. This was reversible error as it amounts to evidence of the defendant’s post-Miranda post-arrest silence.

Gravley v. Mills, 87 F.3d 779 (6th Cir. 1996)

The prosecutor improperly introduced evidence, and argued to the jury the significance of this evidence, relating to the defendant’s post-Miranda silence. This “egregious” conduct required that the conviction be set aside.

Thomas v. Indiana, 910 F.2d 1413 (7th Cir. 1990)

The state trial court committed reversible error in permitting the state to introduce evidence in support of the state’s theory that the defendant was sane, and that the defendant remained silent after being read his Miranda rights. This evidence is clearly inadmissible under Doyle v. Ohio, 426 U.S. 610 (1976) and Wainwright v. Greenfield, 474 U.S. 284 (1986).

Freeman v. Class, 95 F.3d 639 (8th Cir. 1996)

Counsel was ineffective in failing to object when the state offered evidence of the defendant’s silence after being advised of his Miranda rights.

Fields v. Leapley, 30 F.3d 986 (8th Cir. 1994)

The prosecutor violated the defendant’s rights under Doyle v. Ohio, 426 U.S. 610 (1976), by asking an officer about the defendant’s post-arrest post-Miranda silence. With respect to post-Miranda warnings “silence,” silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted. Wainwright v. Greenfield, 474 U.S. 284 (1983). The error was not harmless, and the writ would be granted.

United States v. Turner, 966 F.2d 440 (8th Cir. 1992)

The trial court erred in permitting the government to introduce evidence of the defendant’s post-arrest / post-Miranda silence. Though the defendant later waived his Miranda rights and made a statement, this does not amount to a waiver of the right not to have post-arrest silence admitted. Harmless error.

Bass v. Nix, 909 F.2d 297 (8th Cir. 1990)

The prosecutor’s references to the petitioner’s post-arrest silence violated the defendant’s rights under the Fifth Amendment. The district court correctly granted the writ vacating the conviction.

United States v. Kallin, 50 F.3d 689 (9th Cir. 1995)

The defendant was charged with tax evasion. When he was cross-examined by the prosecutor, he was asked whether he had ever told the IRS agent that he was innocent; and asked whether he had hired a criminal defense attorney when he was first approached by the IRS. Both of these lines of questioning were improper and merited a reversal of the conviction, even though the trial court later directed the jury to disregard these questions and answers. The questions amounted to improper Doyle v. Ohio questions. Even with regard to non-custodial questioning by the IRS agent, because the agent advised the defendant of his right to an attorney, and his right to remain silent, the invocation of that right could not be used to impeach the defendant or suggest that he was demonstrating a consciousness of guilt. With regard to the curative instruction, the instruction merely repeated the offensive questions and answers and then urged the jury to ignore the testimony. This was not an adequate curative instruction.

United States v. Newman, 943 F.2d 1155 (9th Cir. 1991)

The prosecutor’s repeated efforts to elicit testimony about the defendant’s post-arrest silence necessitated a reversal of the conviction.

United States v. Canterbury, 985 F.2d 483 (10th Cir. 1993)

Defendant claimed that he purchased a silencer after being set up (entrapped). At trial, he was cross-examined about this failure to make this claim at the time of his arrest. Because this cross was designed to impeach the defendant’s claim of entrapment, this amounted to reversible error.

United States v. Harrold, 796 F.2d 1275 (10th Cir. 1986)

It was error to admit evidence of the defendant’s post-Miranda silence. The error was harmless in this case.

United States v. Tenorio, 69 F.3d 1103 (11th Cir. 1995)

When entering customs at Miami Airport, the defendant was searched by a customs agent who discovered heroin in his suitcase. Shortly thereafter, the defendant was Mirandized and he declined to waive his rights. The next day, the defendant told an agent that the suitcase had been given to him by a cab driver. At trial, the prosecutor argued that this excuse, coming as it did a day after the discovery of the heroin, was indicative of guilt. If the defendant had been given the suitcase by a cab driver, the prosecutor argued, he would have revealed this immediately after the heroin was discovered. This was not harmless error, since the defendant’s silence was the touchstone of the government’s case.

United States v. Rivera, 944 F.2d 1563 (11th Cir. 1991)

After the defendant was arrested and while his bags were being searched, he said nothing. In fact, the defendant, along with her companions, remained “deadpan” during the entire encounter with Customs officials, including after being Mirandized and as their bags were being searched. During closing argument, the prosecutor argued that this reaction was pre-planned by the defendants. The court thoroughly reviews the law governing the use of a defendant’s post-Miranda silence – including a discussion of whether one’s facial expressions or demeanor can amount to “silence” – and concludes that even if there was error, it was harmless.

United States v. Pena, 897 F.2d 1075 (11th Cir. 1990)

Following his arrest, the defendant was asked if he wanted to make a statement. He responded, “I really want to but I can’t. They will kill my parents.” This amounted to at least an ambiguous invocation of his right to remain silent. The government should have clarified the defendant’s desire before continuing the interrogation. His subsequent incriminating statements should not have been used, though it was harmless error. Also, the Court notes that a defendant’s post-Miranda ambiguous expression of a desire to remain silent is not admissible in evidence. The same is true, of course, for an unambiguous expression of intent to remain silent. This case probably did not survive the decision in Davis v. United States, 512 U.S. 452 (1994). See Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1994).

Brown v. Dugger, 831 F.2d 1547 (11th Cir. 1987)

Following the arrest of the defendant and his confederate, the two were placed in a room together in the presence of the investigating officer. The co-defendant implicated the defendant in the murder; the defendant remained silent. At trial, the investigating officer was permitted to testify that the defendant remained silent and the prosecutor relied on this incriminating silence in his closing argument. The Eleventh Circuit holds this is reversible error.

Matire v. Wainwright, 811 F.2d 1430 (11th Cir. 1987)

The testimony of two police officers as well as the prosecutor’s closing argument regarding the defendant’s silence after being informed of his Miranda rights was impermissible. The evidence was argued by the prosecutor to demonstrate the defendant was not, in fact, insane as he contended in his defense. Because the issue of sanity was not overwhelming, the conviction was reversed.

United States v. Moore, 104 F.3d 377 (D.C.Cir. 1997)

The defendant was charged with possession of cocaine that was found under the hood of his car. After the police discovered the cocaine under the hood, the defendant made no comment and expressed no surprise. He was in custody when this occurred. In closing argument, the prosecutor queried why, if the defendant were unaware that there were drugs under the hood, he said nothing, and failed to register surprise when the drugs were found there. This was an impermissible comment on the defendant’s post-arrest silence. The court further held that the fact that the defendant had not received Miranda warnings did not alter the result. After a defendant is in custody, whether Mirandized or not, his silence cannot be used by the prosecution as evidence of his guilty knowledge, or state of mind. The use of un-Mirandized silence may, however, be used for impeachment purposes, the court notes. Harmless error. The court denied re-hearing en banc, with a lengthy dissent by Judge Silberman, explaining the significance of the court’s holding.

United States v. Johnson, 802 F.2d 1459 (D.C.Cir. 1986)

It was error for the prosecutor to call a witness for the sole purpose of bringing out the post-arrest statement which was not otherwise admissible. However, the defendant’s failure to object to the statement renders the error harmless.