Defining the Scope of the Privilege Against Self-Incrimination: Should Prearrest Silence Be Admissible as Substantive Evidence of Guilt?
Maria Noelle Berger | 1999 U. Ill. L. Rev.
When a suspect responds to prearrest questioning by government agents with silence, it is unclear whether that silence can later be used against him in court to prove his guilt. Currently, the Fifth and Eleventh Circuits allow prearrest silence to be admitted as substantive evidence of guilt, while the First, Seventh, and Tenth Circuits do not. In this note, the author uses a two-step analysis to interpret the Fifth Amendment privilege against self-incrimination in the prearrest context. First, does prearrest silence come within the scope of the Fifth Amendment privilege? The author examines the history of the Fifth Amendment and finds that under either the traditional view or the newer approaches, prearrest silence is protected. Second, do the goals of the criminal justice system favor admitting or excluding this protected silence? The author concludes that prearrest silence should be excluded because this furthers both the truth-discovery function and independent social goals of the rules of criminal procedure. Thus, the author resolves the question by calling for the exclusion of prearrest silence as substantive evidence of guilt, limited to instances of accusatory questioning.