Wealth-based discrimination: there ought to be a law

I was part of the Housing Group at the Rochester Anti-Poverty Initiative’s planning session last year. We recommended support for a law protecting residents in the City of Rochester against unfairness in housing based on “source of income.” (So, advertisements that say, “No Section 8 NEED apply” would be prohibited. I was very glad to see Adam McFadden, a councilman, take up that cause. My recommendation on the Anti-Poverty Housing Team went even further.

I thought that people should be protected against ALL income-based discrimination.

Three examples:

EXAMPLE 1. When someone gets a traffic ticket in the City of Rochester, they go to the city traffic bureau, which has no district attorney assigned to it, and no plea bargain process… in the suburbs, if you get a traffic ticket you can negotiate with the Assistant District Attorney assigned to that court, or get a lawyer who does the same, and the points and fine are decreased. This disproportionately and negatively effects poor people who are more likely to reside and drive in the city where they live. It is income-based discrimination. Mayor Lovely Warren has pointed out the discrepancy and tried to change it (although I’m not sure why she didn’t just order a District Attorney assigned to the current court): http://www.democratandchronicle.com/…/mayor-lovel…/85250224/

EXAMPLE 2. When bail is required for people who are not a flight risk, more poor people stay in jail after arraignment than their wealthier counterparts, and lack of money for bail, and being in jail, makes it harder for them to build a case with their assigned counsel. It is income-based discrimination.

https://www.nytimes.com/…/judge-strikes-down-harris-county-….

A judge in Houston struck down a bail system because it was “wealth based discrimination.” The opinion is apparently over 100 pages. That link is a summary, but I hope the Memo and Order are published soon and explain the crux of why something no one legally considers a protected class (lack of income) is unconstitutional and might be worthy of protective status after all: I think possibly it is because of outcomes of wealth based discrimination.

In outcomes, wealth-based discrimination is the dressed up exterior of structural racism.

I am defining structural racism as all those systems in place that disproportionately effect African Americans for whom future dreams (such as home ownership, quality education for their children, low victimization and avoidance of the criminal justice system) are hampered by systems and structures that have nothing to do with personal responsibility, and everything to do with those unequal systems in place. The structurally racist bail system puts poor people behind bars faster and more often than their wealthier counterparts–and poor people are also disproportionately African American.

EXAMPLE 3. State education funding formulas in New York State give too much money to rich districts and not enough money to poor ones. That’s true because property taxes pay for education, and so the rich can help themselves first and most of all. It’s also true because state funding that makes up the difference is doled out unfairly. Politicized, per pupil funding doesn’t work. When the City school needs a new boiler so the kids have heat and the Fairport school needs nothing after the property taxes come in, but they both get funded by the State, that is income-based discrimination. Both property tax funding and unfair state funding formulas account for an income-based discrimination that looks precisely like segregation in Monroe County schools, which is undeniable.

See http://www.democratandchronicle.com/…/new-york-st…/89306728/

“Wealth-based” or “lack of income-based” discrimination goes much, much further than current discussions of “source of income” local legislation advocated by Adam McFadden and others. Instead of saying to landlords, “you can’t write No Section 8 in your advertisements for housing” legislation in the city AND the County forbidding “Lack of income” discrimination could give all of us the framework required to, frankly, deplete ALL the current mechanisms by which structural racism (in housing, criminal justice, education) currently hides and thrives.

Trump and the Death of Democracy

I have focused on the sexism, racism, homophobia, and xenophobia that is deeply and expressly embedded in Trump’s rhetoric, and the bias he tuned into, in many supporters, to become elected. This morning I have read the wise words of Michael Lerner, a rabbi, who I’ll paraphrase this way: The Trump supporters really are disgusted, fed up, angry. . . they keyed into THAT part of Trump’s message, rather than where he pointed the finger. They are fueled by the pain of believing we live in a meritocracy. (see <a href="http://“>THIS ARTICLE in the NY Times)

Trump supporters who belive in meritocracy mythology believe if one works hard and is smart, one is rewarded accordingly, if only the government would stop getting in the way of that ideal. So, they play by the (extensive) rules– they always did–and they have seen, in response, their income is less, their debt is high, and politicians have sold them out. They are losing bigly in this country. Trump may be sexist, racist, homophobic, and xenophobic, but at least he seemed to understand WHY that message of hate was halfway palatable to some of them. What fueled the howling anger at the liberal elitist DC politics as usual was not hatred of the Other. It was a dream of a fair shot denied, and if the “Other” (the vulnerable and weak) were taking the brunt of the blame, that was unfair. But at least someone was pissed alongside them.

My solidarity with my shaken friends prompts my own fury in the days after the election. But I understand already that my tormented rage does not do me, personally, any favors. I have alienated my friends, family, and co-workers. I am risking my reputation for respectful debate. Yet I am being as moral as I can.

To that end, and by means I can live with, today I begin a journey of understanding democracy better.

#Democracy
The rhetoric Trump used that runs counter to democratic values.

On the First Amendment right to free press: Twitter statement to The Wall Street Journal: ‘They better be careful or I will unleash big time on them’

On the First Amendment right to freedom of religion:
Trump told Fox News that the U.S. government should close mosques where “some bad things are happening.” He said, “Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”

On the Fourth Amendment right to freedom from unreasonable search and seizure and the Fourteenth Amendment due process guarantee (against, for example, racial profiling by police)
“Our local police — they know who a lot of these people are. They are afraid to do anything about it because they don’t want to be accused of profiling,” Trump said on Fox News on Monday. Trump pointed to how Israel used profiling and “done an unbelievable job.”

On the Free Exercise and Establishment Clauses of the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause, which forbids states from treating individuals differently based on unalterable characteristics, such as race, nationality, and gender. The Supreme Court has imposed the same obligation on the federal government through the Fifth Amendment:
Trump promises ‘A total and complete shutdown of Muslims entering the United States’ .

On the Eighth Amendment prohibition against cruel and unusual punishment and The Geneva Convention global illegality of torture:
“We’re fighting a very politically correct war,” he said “and the other thing is with the terrorists: You have to take out their families.”).

‘I’d bring back a hell of a lot worse than waterboarding’

On free elections (accepting election result) “I would like to promise and pledge to all of my voters and supporters and to all of the people of the United States that I will totally accept the results of this great and historic presidential election,” Trump said, adding, “If I win.”

Trump’s rhetoric runs counter to democracy because it showcases a total disregard for the Constitution…not merely those parts of it rendered possible through a “living document” judicial activism ideology, but even those parts of the Bill of Rights that Originalists also claim as literal to the document. The democratic ideals enshrined there are at stake in the next four years. Trump’s ascendancy was like finding out your country has a terrible illness. It is a time to learn, to study the underpinnings of democracy, and to use everything learned in the fight against the death of democracy.

1. FN1

2. FN2
3.FN3

4. FN4

5.FN5

6. FN6
7. FN7

8. FN8

THE SOUND OF SILENCE after Berghuis v Thompkins:[1] silence as evidence now that the Fifth Amendment right to silence must be explicitly invoked.

legal books

Overview

A man is brought in to custody in a police station for questioning. He does not invoke his right to silence, but he remains quiet.  He is given Miranda warnings, and still, remains quiet.  He is accused of a crime by interrogating police. He fails to protest his innocence. 

At that defendant’s trial, the prosecutor brings up his silence in summation.  “If he wasn’t guilty, why didn’t he say so?” says the prosecutor.  Defense moves to strike, and for a curative instruction, citing Supreme Court case Doyle v. Ohio,[2] and New York Court of Appeals case People v. DeGeorge,[3] both of which prohibit the use of pretrial silence of a defendant as evidence of guilt. The prosecutor responds, “Your Honor, since the Supreme Court decided Berghuis v. Thompkins,[4] it is established that silence itself does not invoke the right to silence. Silence should not be a shield any more, where it isn’t ambiguous, in light of that case. Why would the defendant stay silent when he must speak to gain the right to silence?  Here, his silence was clear evidence of guilt. I ask that you allow the summation.” The trial judge agrees with the prosecutor, and does not issue a curative instruction. 

The issue explored in this paper is whether the insistence set out in Berghuis v Thompkins[5] that defendants must invoke their right to be silent, will make pretrial silence more likely to be used as evidence of guilt in court either as impeachment evidence or as a ‘not-hearsay’ exception under Federal Rule of Evidence (FRE) 801(d)(2)(B). [6]  

A note on the use of the word “pretrial”: Some cases discussed in this essay use the word prearrest, others custodial, others pre-Miranda and post-Miranda to describe the silence of a defendant when speaking to police officers.  This essay will not delve into the timeline and in fact this writer believes such a task would be ill conceived, with its connotations that a precise timeline would do anything but constrict the Fifth Amendment and would have the effect of limiting the arena of due process.  Instead, this paper will use the word ‘pretrial’ in the broadest way possible to mean ‘prior to trial.’

This essay will look at cases post-Berghuis in New York as an example of the apparently new way this state applies the hearsay exception concerning the defendant’s pretrial silence as impeachment evidence of guilt.  The use of such evidence in court has moved from reversible to, in at least one case, harmless error.[7]  As a general rule, pretrial silence by a defendant used as evidence is still prohibited.[8]  As the New York Court of Appeals reasoned in People v. Conyers, “[l]ike the Molineux and the Sandoval rules” [regarding non-use of evidence of past criminal convictions] “the rule announced in our decision today represents a simple recognition of our judicial responsibility to formulate rules of evidence to protect the integrity of the truth-finding process. Evidence that is highly prejudicial but of low probative worth has traditionally been excluded from criminal trials because it carries with it a grave potential for distorting the search for truth which is at the heart of our adversary system.” There, defendant’s pretrial silence was thus excluded.”[9]

Yet, at least one New York court has a different treatment of silence by a defendant in the face of accusations; use of that silence for impeachment purposes on cross-examination and in summation as evidence of his guilt.[10] 

This essay will recap the 2010 Supreme Court case Berghuis v. Thompkins[11] and how that case dealt with the issue of custodial silence and the application of a Miranda warning.[12]  The essay will summarize how silence can be used as evidence, both in the Federal courts and in New York.  The paper will explore the Supreme Court cases that prohibit the use of such evidence where the defendant is in custody and has been given a Miranda warning.[13] The paper will discuss how this protection has been weakened over time.  Finally, the paper will discuss briefly other criminal justice arenas where silence is used against defendants, regardless of the general prohibition of its probative use in court.

A.     The New York landscape prior to 2010[14]

At first glance, the New York courts appear to have treated the issue of “pretrial silence as evidence of guilt” the same way it always has; that is, treating the use of such evidence use as harmless error.[15] 

In People v. Billups, the Second Department wrote,

“the [lower] court did commit error in connection with certain rulings, including, for example, permitting the prosecutor to cross-examine the defendant as to his failure to contact police after the crime and prior to his arrest (citations omitted). However, the cumulative effect of those errors which were preserved for review as a matter of law was not such as to warrant a new trial (citations omitted).[16]

 That is, the error in allowing the prosecutor to question the defendant’s silence was considered harmless in that case..

 On closer inspection, the Second Department in New York normally treated such evidence as reversible error.[17]  It was not just a mistake; it was a mistake that required a new trial.  People v. Billups[18] does not seem so much the rule as an outlier. In both People v. Wagman[19] and People v. Gilmore[20], prior to Billups, and in People v. DeGeorge[21], after Billips, the New York courts clearly weighed the error more heavily and ordered new trials in all three cases.[22] 

In People v Gilmore, the court’s treatment of the use of pretrial silence as evidence of guilt was grave and unequivocal.[23]  They explained:  “As the right to silence is a fundamental right, any attempt to penalize a person for the exercise of such right must be scrutinized with extreme care.”[24]  The Second Department ultimately held, “It was plainly error for the prosecutor, during cross-examination of the defendant, to ask him questions about, and during summation to make reference to, Gilmore’s silence during his interlude in South Carolina.”[25]  The court continued, “the error herein was of constitutional magnitude and clearly prejudicial.”[26]

In People v. Wagman[27], the court explained with similar gravity, 

Although witnesses’ credibility is certainly a proper subject for comment in summation, the use of a defendant’s pretrial silence for impeachment purposes is proscribed. “A defendant is under no greater an obligation to incriminate himself by voluntarily contacting the police than he is by declining to make statements when confronted by law enforcement officials” The prosecutor’s statement clearly indicated that defendant was less worthy of belief because he maintained his silence until the trial. Defendant’s objection should have been sustained, and corrective instructions given.[28]

 The court continued, “Had the jury been properly instructed concerning the justification defense and had defendant’s credibility not been impermissibly undermined, the result may well have been different.”[29]  The Second Department held, “reversal is required.”[30]

Finally, in People v. DeGeorge, the New York Court of Appeals clearly found once more that pretrial silence could not be used against a defendant as evidence of his guilt at trial.[31]  The court held, “use of defendant’s prearrest silence to impeach him or as direct evidence of guilt violated our common-law rules of evidence. Accordingly, we need not address defendant’s contention that its admission violated article I, § 6 of the State Constitution and the Fifth Amendment of the United States Constitution.”[32]  The defendant was granted a new trial.[33]

Thus, in the majority of cases the New York courts considered the use of a defendant’s pretrial silence at trial– either on cross examination or in summation—as reversible error.

B.     Berghuis v Thompkins

Silence in custodial situations is off-limits for prosecutors, but the contours of custodial silence are changing.  The case that makes this clear is Berghuis v. Thompkins.[34]  This case will be discussed in detail to shed light on how the use of custodial silence in court is no longer always prejudicial error.

For nearly three hours, during a custodial interrogation of Van Chester Thompkins regarding a shooting that had occurred, Thompkins said nothing to police.[35] The Court found that:

At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3–hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied the motion.[36] 

 

The United States Court of Appeals for the Sixth Circuit had ruled that two constitutional errors had been made in the guilty verdict; of relevance, that a statement by the accused, relied on at trial by the prosecution, had been elicited in violation of Miranda v. Arizona.[37]  Certiorari was granted to review the decision by the Sixth Circuit on both points.[38]  The Supreme Court reversed that court, and determined that a defendant must assert rather than merely rely on a passive right to silence as “Thompkins’ silence during the interrogation did not invoke his right to remain silent.”[39]

The first rule in Berghuis is that a suspect’s Miranda right to counsel must be invoked “unambiguously.”[40] “If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation . . . or ask questions to clarify the accused’s intent.” [41]

The rationale of the Court reflected their reliance not on Miranda v. Arizona[42] but on Davis v. United States.[43] Davis is a case involving the right to counsel, which Berghuis conflates with the issue of the right to remain silent.  The Court reasoned:

There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that “avoid[s] difficulties of proof and … provide[s] guidance to officers” on how to proceed in the face of ambiguity. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither.[44]

 The second rule Berghuis sets out is the when and how the right to silence has been waived.[45] The Court held, “Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. A waiver must be ‘the product of a free and deliberate choice rather than intimidation, coercion, or deception’ and ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’[46] Such a waiver may be implied through a “defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver. . . .If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver.”[47]

Applying this second rule, the Court determined that Thompkins had waived his right to remain silent when he spoke.[48]  Yet, a central tenet in Miranda was, “if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”[49]  The Court’s reliance on Davis and its reasoning for the standard for the right to counsel allows them to sidestep this component of the Miranda decision.  The Court used the Davis[50] ‘unambiguous invocation’ requirement rather than Miranda’s invocation in ‘any manner’ requirement as follows:

The record here shows that Thompkins waived his right to remain silent. First, the lack of any contention that he did not understand his rights indicates that he knew what he gave up when he spoke. Second, his answer to the question about God is a “course of conduct indicating waiver” of that right.  Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation.[51]

 

Then, the Court cites the words ‘Miranda warning’ (not the decision, and not the Fifth Amendment) to conclude that a statement is a course of conduct and nearly three hours of silence is not: “That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”[52]

The Berghuis decision has left defendants with a stricter standard to follow when invoking their right to silence than was previously required. 

One commentator has focused on the need to update the Miranda warnings in light of Berghuis, explaining that post-waiver silence would be used by prosecutors to make their case at trial:

The fact that prosecutors are introducing post-waiver silence into evidence and commenting on it during their opening and closing statements only reinforces the logical conclusion that such silence has an effect on the jury, as it seems safe to conclude that prosecutors generally do not include random or irrelevant information in their attempts to persuade juries of defendants’ guilt. . . . Any allowance of such evidence that comes at the expense of a constitutional right–or, more precisely, that results from a suspect’s ignorance of how to invoke a constitutional right–is problematic, as it represents the current warnings’ failure to achieve the purposes for which they are required.[53]

 

            Such an update would acknowledge that, especially post-Berghuis, silence is being used against defendants in a new way.  Silence is used both negatively– as evidence that the defendant was not explicitly invoking his right to silence–, and positively– as impeachment evidence.

 C.        The New York landscape post-2010

 Since Berghuis was decided the New York Court of Appeals has not addressed whether the common law use of pretrial silence as evidence of guilt has changed from absolutely proscribed to harmless.  However, the Third Department addressed the issue in 2011 in People v. Abare.[54]   

During a cross examination in People v. Abare, the prosecutor questioned the defendant for failing to proclaim her innocence to police prior to being arrested.[55]  While the Third Department found error in such questioning, it deemed that error harmless.  The court noted:

Defendant’s assertion that she was denied a fair trial by improper and prejudicial questioning during cross-examination about her failure to proclaim to police that she was innocent prior to being arrested and a later reference during summation regarding her prearrest silence is, as she concedes, not preserved for our review. County Court’s failure to give a curative instruction was error. . . but we decline to exercise our interest of justice jurisdiction, finding the error harmless in light of the overwhelming evidence of defendant’s.[56] 

 Such is the change in New York, where once the error of admitting evidence of pretrial silence as probative marker of guilt was clearly reversible and now can be seen as harmless.

In Berghuis, silence itself is not technically used as evidence.  That is not why the case is focused on here.  Rather, since Berghuis, silence is not considered anymore a “manner” that suggests “that he does not wish to be interrogated,” as per the Miranda v. Arizona holding (infra at FN 12).  In Berghuis, silence is a form of evidence that crosses the threshold of the courtroom, as the platter upon which a defendant’s statements post-silence are allowed into court.  As such a ‘platter’, this essay theorizes that silence has been normalized as a form of evidence.  Berghuis may have made the closing argument or cross examination which suggests “pretrial silence is a statement of guilt” more likely to be considered harmless error.

 D.         Silence as evidence under Federal Rule of Evidence 801(d)(2)(B)

 Federal Rule of Evidence 801(d)(2)(B) states that “A statement is not hearsay if. . . the statement is offered against a party and is. . .  a statement of which the party has manifested an adoption or belief in its truth. . .”[57]   That is, although as a general matter, hearsay cannot be used, an admission by party opponent is a legislative exception of “not hearsay” even when, for example, the statement is not spoken, but is implicit in silence.   The rationale of Fed.R.Evid. 801(d)(2)(B) is that “[a]n innocent person accused of being involved in a crime will ordinarily deny such involvement or, at least, assert that the incriminatory statement is untrue. [58]

“Absent circumstances that render it more probable that a person would not respond to an accusation against him than that he would, such person’s silence or other ambiguous conduct is admissible as an adoptive admission under Fed. R. Evid. 801(d)(2)(B)”[59]

 E.         The General Rule for Applying 801(d)(2)(B) Silence as Acquiescence

 One admission by party opponent may be made by adopting or acquiescing in the statement of another.  As the Advisory Committee Notes to the FRE explain, “Adoption or acquiescence may be made in any appropriate manner.  When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made by another, if untrue.”[60]

The FRE explores the potential problems with this inference in a criminal case:  “silence may be motivated by advice of counsel or realization that ‘anything you say may be used against you’; unusual opportunity to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved.” [61]

But, the Advisory Committee does not stay worried for long, concluding, “However, recent decisions of the Supreme Court relating to custodial interrogation and the right to counsel appear to resolve these difficulties.  Hence the rule contains no special provisions concerning failure to deny in criminal cases.”[62]

This conclusion referencing Supreme Court case law presumably shuts the door to the use of pretrial silence of defendants as evidence of their guilt.    Yet, that is not the direction the case law has taken in recent years. 

 F.         Pretrial Silence of a Defendant as Probative Evidence According to the Supreme Court

 Three Supreme Court cases on the issue of pretrial silence as evidence of guilt help trace the court’s new offhand treatment of the prohibited evidence in New York.  They are Doyle v. Ohio[63], Jenkins v. Anderson[64] and Brecht v. Abrahamson.[65]

In Doyle, the court explained why silence was not necessarily probative of guilt in the face of accusations and why in any case it could not be used as evidence even where it was probative:

The warnings mandated by [the Miranda] case, as a prophylactic means of safeguarding Fifth Amendment rights . . . require that a person taken into custody be advised immediately that he has the right to remain silent. . . . Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. . . .  Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial . . . . [66]

Thus, under FRE 801(d)(2)(B)), the Doyle holding made it clear that the silence as adoptive admission in custodial situations could not be used.

In Doyle, [67] the Supreme Court reasoned, “every post-arrest silence is insolubly ambiguous” because when the State tells a defendant ‘anything can be used against you’ it implies that silence can only be a good thing, but that is juxtaposed with the idea that anyone wrongly accused will speak up in protest.  As another commentator explained:

The suspect who merely remains silent understands that he should not respond to the question, and he does not want to answer it precisely because he fears that his response may incriminate him. He is, of course, unaware that his silence in that instance is only marginally better than a more direct manifestation of his guilty conscience or that, in fact, jurors are free to treat them as functional equivalents.[68]

A defendant’s silence in light of this paradox is ambiguous, and thus, in Doyle, ‘silence carries no penalty.’

That’s no longer true; silence does carry a penalty today.  A defendant hasn’t asserted his right to silence if he is merely silent.  “Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak,”[69] as Justice Sotomayor wrote in her dissent in Berghuis

But even before Berghuis added this layer of confusion as to when silence may be used by a prosecutor as evidence and when it functions as a lock on the door where defendant’s Fifth Amendment privilege begins, Supreme Court case law already limited the central holding in Doyle.[70]  Consider the use of pretrial silence for impeachment purposes in Jenkins v. Anderson[71] following Doyle[72] in 1980. 

In Jenkins,[73] the Supreme Court reasoned, “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.”[74]  The Court further found, “[i]n this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings.  Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.”[75]

Consider next the Brecht v. Abrahamson explanation of how to implement Doyle’s prophylactic rule against use of silence as evidence of guilt at trial:

In Doyle v. Ohio we held that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” This rule “rests on ‘the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.’” The “implicit assurance” upon which we have relied in our Doyle line of cases is the right-to-remain-silent component of Miranda. Thus, the Constitution does not prohibit the use for impeachment purposes of a defendant’s silence prior to arrest or after arrest if no Miranda warnings are given. Such silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty.[76]

Unfortunately for defendants, if it is true that the right-to-remain-silent component of Miranda is the new bedrock upon which the prohibition of the use of pretrial silence is built, then the bedrock is made of shale.  From Doyle to Jenkins to Brecht, the prohibition against using pretrial silence as admission is not as firm as it was in Doyle.[77]

Doyle started out with assurances of a right to remain silent, premised on much more than the Miranda warnings given to defendants.[78] Doyle used the Miranda warnings as its rationale for a rule against use of silence during interrogation as evidence of guilt, but that rationale proceeded inexorably from the Fifth and Fourteenth Amendments.[79]  The Fifth Amendment and the due process component of the Fourteenth Amendment is what made silence “insolubly ambiguous” and Doyle acknowledged as such.[80] But by the time the Supreme Court got to Jenkins v. Anderson in 1980 and Brecht v. Abrahamson in 1993 their reasoning had shifted once more.[81] 

Jenkins began to use pretrial silence for impeachment purposes against defendants.[82]   

Brecht trimmed from Doyle’s import the Fifth Amendment rationale, choosing instead to rely solely on the Miranda warning itself to explain the inherent ambiguity of the use of pretrial silence as probative evidence.[83]

Finally, Miranda’s new complexity, wherein silence is not explicit invocation of the right to silence, means the specific parsing of the Doyle line of cases is no longer specific enough.[84]  Because of Berghuis [85] not only is the right to silence a protection only after Miranda warnings are given, the right to silence is further restricted to times when a defendant clearly invokes it.[86]  The cases restrict temporally and meaningfully what was once a broad right against self-incrimination.  Now a defendant can incriminate himself before Miranda warnings are given; if Miranda warnings are not given; and if he fails to invoke Miranda by not speaking at all.   

 G.        Silent admissions used against a party in other areas of the justice system

 Outside the courtroom where the rules of evidence are at play, silence may also raise the suspicions of a police officer tasked with choosing the defendant who will be arrested for commission of a crime.  This form of police discretion has far-reaching consequences for defendants who do choose to remain silent, without asserting that right in words.  Whether or not there is strong evidence of commission of the offense under investigation may not be as important as a defendant’s demeanor to the detectives who have that power to decide if that investigation is over, or just begun, whether or not that defendant can go home, or be placed under arrest.  Silence, post-Berghuis, may be less ambiguous now, to police detectives tasked with making sense of silence.[87]  A defense attorney must, if this is true, advise his client to assert his right to silence and then to say nothing.  It is a troubling aspect of the consequences of the Berghuis decision.[88]

Conclusion

Returning to the hypothetical posed at the start, it seems optimistic to believe that courts will forever call the admission of pretrial silence ‘reversible error.’  Indeed, already the NYS Appellate Division, Third Department in People v Abare, discussed, infra, called similar evidence ‘harmless error.’ Berghuis might seem merely paradoxical– in that it asks a defendant to speak to be quiet—yet if it has the effect predicted it is a grave case indeed.  Pretrial silence after Berghuis is a statement: either negative, i.e. “I am not invoking my right.” or positive, i.e. “I am guilty.”  For, the Supreme Court sees silence as it wishes; either as impeachment evidence or as evidence that the defendant has no Fifth Amendment privilege at his disposal until they say so.


[1] Berghuis v. Thompkins, 130 S. Ct. 2250, at 2253 (U.S. 2010)

[2] Doyle v. Ohio, 426 U.S. 610 (1976)

[3] People v. DeGeorge, 73 N.Y.2d 614 (1989)

[4] Berghuis v. Thompkins, 130 S. Ct. 2250, at 2253 (U.S. 2010)

[5] Id.

[6]Fed R. Evid. 801(d)(2)(B) Admission by party-opponent;  The statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth. . . .

[7] People v. Abare 86 A.D.3d 803, 804-805, 927 N.Y.S.2d 233, 235 (N.Y.A.D. 3 Dept.,2011)

[8] Doyle v. Ohio, 426 U.S. 610, 617 (1976) [standing for the proposition that “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested]; See Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) [explaining that Doyle v. Ohio stood for the proposition that a defendant’s silence could not be used for impeachment purposes “at the time of arrest and after receiving Miranda warnings”]; See also Jenkins v. Anderson, 447 U.S. 231 (1980) [Wherein the Court reframed Doyle as follows: ‘it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.’ (citations omitted).].  For New York examples of the proposition that at the time of arrest and after receiving Miranda warnings silence cannot be used for impeachment purposes, see  People v. Billups, 132 A.D.2d 612, 518 N.Y.S.2d 9 (2d Dep’t 1987) People v. DeGeorge, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11 (1989); People v. Gilmore, 76 A.D.2d 548, 430 N.Y.S.2d 854 (2d Dep’t 1980); People v. Wagman, 99 A.D.2d 519, 471 N.Y.S.2d 147 (2d Dep’t 1984) [Discussed supra].

[9] People v. Conyers, 52 N.Y.2d 454, 460 (N.Y.,1981)

[10] People v. Abare 86 A.D.3d 803, 804-805, 927 N.Y.S.2d 233, 235 (N.Y.A.D. 3 Dept.,2011)

[11] Berghuis v. Thompkins, 130 S. Ct. 2250, 2253, 176 L. Ed. 2d 1098 (2010) reh’g denied, 131 S. Ct. 33, 177 L. Ed. 2d 1123 (U.S. 2010)

[12] Miranda v. Arizona, 384 U.S. 436, 444-445 (1966) [holding that: “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”]

[13] Id.

[14]This section of the essay will look at the standard of review courts use in describing an error made in court regarding silence used as evidence.  Pretrial silence used against a defendant seems now to be more acceptable to courts.  Whether the change in the standard of review in cases in which pretrial silence is used either substantively or as impeachment evidence against a defendant is representative of a sea change in New York law is not a foregone conclusion. It may be that the cases are too fact-specific to make generalizations.  Still, this paper relies on that change in standard of review as at least one measure that may indicate that pretrial silence is being used in a relatively new way.

[15] People v. Billups, 132 A.D.2d 612, 612 (2d Dep’t 1987)

[16] Id.

[17] See, infra, People v. Billups, 132 A.D.2d 612, 518 N.Y.S.2d 9 (2d Dep’t 1987); and discussed, supra, People v. Gilmore, 76 A.D.2d 548, 430 N.Y.S.2d 854 (2d Dep’t 1980); People v. Wagman, 99 A.D.2d 519, 471 N.Y.S.2d 147 (2d Dep’t 1984); People v. DeGeorge, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11 (1989).

[18] People v. Billups, 132 A.D.2d 612, 612 (2d Dep’t 1987)

[19] People v. Wagman, 99 A.D.2d 519, 471 N.Y.S.2d 147 (2d Dep’t 1984)

[20] People v. Gilmore, 76 A.D.2d 548, 430 N.Y.S.2d 854 (2d Dep’t 1980)

[21] People v. DeGeorge, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11 (1989).

[22] See, infra, People v. Billups, 132 A.D.2d 612, 518 N.Y.S.2d 9 (2d Dep’t 1987); and discussed, supra, People v. Gilmore, 76 A.D.2d 548, 430 N.Y.S.2d 854 (2d Dep’t 1980); People v. Wagman, 99 A.D.2d 519, 471 N.Y.S.2d 147 (2d Dep’t 1984); People v. DeGeorge, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11 (1989).

[23] People v. Gilmore, 76 A.D.2d 548, 430 N.Y.S.2d 854 (2d Dep’t 1980)

[24] Id.  Citations omitted.

[25] Id.

[26] Id.

[27] People v. Wagman, 99 A.D.2d 519, 471 N.Y.S.2d 147 (2d Dep’t 1984)

[28] Wagman, 99 A.D.2d at 571 (2d Dep’t 1984) Internal citations omitted.

[29] Id.

[30] Id.

[31] People v. DeGeorge, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11 (1989)

[32] Id.

[33] Id.

[34] Berghuis v. Thompkins, 130 S. Ct. 2250, 2253, 176 L. Ed. 2d 1098 (2010) reh’g denied, 131 S. Ct. 33, 177 L. Ed. 2d 1123 (U.S. 2010)

[35] Berghuis v. Thompkins, 130 S. Ct. 2250, 2253, 176 L. Ed. 2d 1098 (2010) reh’g denied, 131 S. Ct. 33, 177 L. Ed. 2d 1123 (U.S. 2010)

[36] Id. at 2253

[37] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 

[38] Berghuis, 130 S. Ct. 2250 at 2254 (2010)

[39] Id.

[40] Id.

[41] Id.Internal citations omitted

[42] Miranda v. Arizona, 384 U.S. 436 (1966)

[43] Davis v. United States, 512 U.S. 452, 458-459 (1994)

[44] Berghuis, 130 S. Ct. 2250 at 2254 (2010)

[45] Id.

[46] Berghuis, 130 S. Ct. 2250 at 2255 (2010) citing Moran v. Burbine, 475 U.S. 412, 421 (1986).

[47] Berghuis, 130 S. Ct. 2250 at 2256 (2010) citing North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286.

[48] Id.

[49] Miranda v. Arizona, 384 U.S. 436 (1966) and infra, at FN 13. Emphasis added.

[50] Davis v. United States, 512 U.S. 452, 458-459 (1994)

[51] Berghuis, 130 S. Ct. 2250 at 2254 (2010)

[52] Id.

[53] Hammack, Joshua I., “Turning Miranda Right-Side Up: Post-Waiver invocations and the need to update the Miranda Warnings,” 87 Notre Dame L. Rev. 421, 441 -443 (2011)

[54] People v. Abare 86 A.D.3d 803, 804-805, 927 N.Y.S.2d 233, 235 (N.Y.A.D. 3 Dept.,2011)

[55] Id.

[56] Id. Internal citations omitted. Emphasis added.

[57] Fed. R. Evid. Rule 801 (d)(2)(B) p. 22 (2010)

[58] United States v. Shulman, 624 F.2d 384, 390 (2d Cir.1980).

[59]  United States v. Tocco, 135 F.3d 116, 128-29 (2d Cir. 1998) quoting United States v. Flecha, 539 F.2d 874, 877 (2d Cir.1976).

[60] Fed. R. Evid. Rule 801 (d)(2)(B) Advisory Committee’s Note p. 208 (2010). Emphasis added.

[61] Id.

[62] Id.

[63] Doyle v. Ohio, 426 U.S. 610 (1976)

[64] Jenkins v. Anderson, 447 U.S. 231 (1980)

[65] Brecht v. Abrahamson, 507 U.S. 619 (1993)

[66] Doyle v. Ohio 426 U.S. 610, 617-619 (1976)

[67] Id. at 619

[68] Hammack, Joshua I., “TURNING MIRANDA RIGHT SIDE UP: POST-WAIVER INVOCATIONS AND THE NEED TO UPDATE THE MIRANDA WARNINGS,” 87 Notre Dame L. Rev. 421, 441 -443 (2011)

[69]  Berghuis v. Thompkins, 130 S. Ct. 2250, 2278, 176 L. Ed. 2d 1098 (2010) reh’g denied, 131 S. Ct. 33, 177 L. Ed. 2d 1123 (U.S. 2010)

[70] Doyle v. Ohio 426 U.S. 610, 617-619 (1976)

[71] Jenkins v. Anderson, 447 U.S. 231, 238 (1980)

[72] Doyle v. Ohio 426 U.S. 610, 617-619 (1976)

[73] Jenkins v. Anderson, 447 U.S. 231, 238 (1980)

[74] Id.

[75] Id. at 240

[76] Brecht v. Abrahamson 507 U.S. 619 (1993) Citations omitted. Emphasis supplied.

[77] Doyle v. Ohio 426 U.S. 610, 617-619 (1976; Brecht v. Abrahamson 507 U.S. 619 (1993); Berghuis v. Thompkins, 130 S. Ct. 2250, 2278, 176 L. Ed. 2d 1098 (2010) reh’g denied, 131 S. Ct. 33, 177 L. Ed. 2d 1123 (U.S. 2010).

[78] Doyle v. Ohio 426 U.S. 610, 617-619 (1976)

[79] USCA CONST Amend. V-Full Text reads “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  (Emphasis supplied.)

[80] Doyle v. Ohio  426 U.S. at 618 (1976)

[81] Brecht v. Abrahamson 507 U.S. 619 (1993)

[82] Jenkins v. Anderson, 447 U.S. 231, 238 (1980)

[83] Brecht v. Abrahamson 507 U.S. 619 (1993).

[84] Berghuis v. Thompkins, 130 S. Ct. 2250, 2278, 176 L. Ed. 2d 1098 (2010) reh’g denied, 131 S. Ct. 33, 177 L. Ed. 2d 1123 (U.S. 2010).

[85] Id.

[86] Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).

[87] Berghuis v. Thompkins, 130 S. Ct. 2250, 2278, 176 L. Ed. 2d 1098 (2010) reh’g denied, 131 S. Ct. 33, 177 L. Ed. 2d 1123 (U.S. 2010).

[88] Id.