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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. . . .
Like the year 1929, history will remember the year 2001 as one of failed companies, market disruption, and scandalous allegations. Enron Corp. (Enron) and WorldCom Inc. (WorldCom) exemplify the pattern of corporate greed that emerged. Enron and WorldCom rank among the largest American companies and sat atop the stock market until the discovery of massive accounting irregularities.
As Federal Reserve Chairman Alan Greenspan observed, in recent years, stock market players shifted focus from dividend yields to corporate earnings. While Enron and WorldCom reported impressive revenues, the reports also contained hidden clues to the true state of affairs. Enron boosted revenues to $101 billion by including revenue figures of partnership ventures and inflated estimates of contract values.7 The comparatively paltry profit figure of $6.3 billion reflects the exclusion of the partnerships’ liabilities from Enron’s balance sheet.8 At WorldCom, employees discovered a trail of phony transactions amounting to over $7 billion in improper revenue shifting. . . .