The Fifth Amendment secures a defendants right against compelled self-incrimination at trial. The United States Supreme Court expanded that protection to include custodial interrogations, which are presumed to be inherently coercive in nature. When faced with the pre-arrest, pre-Miranda context, however, the Court has limited its rulings to certain contexts, allowing comment on a defendant’s silence for impeachment purposes. The Court’s reservation on the issue has led to a split among the circuit courts as to whether the prosecution may use pre-arrest silence to show substantive evidence of a defendant’s guilt. The split among the circuits has provided little guidance to lower courts, resulting in scattered state law decisions regarding the use of pre-arrest silence in the prosecution’s case-in-chief.
This Note takes the position that the current Court should rule that the use of pre-arrest, pre-Miranda silence in the prosecution’s case-in-chief as substantive evidence of a defendant’s guilt is not a violation of the Fifth Amendment and should be admissible. Part II.A of this Note outlines the evolution of the privilege including a discussion of the drafters’ intentions behind the Fifth Amendment’s self-incrimination clause. This discussion briefly outlines the history behind the colonists’ adoption of the self-incrimination privilege. Additionally, the Note will focus upon the Supreme Court’s treatment of Fifth Amendment case law surrounding the self-incrimination clause. Part II.A also addresses the policy concerns underlying the privilege. . . .