Using Post-Arrest Silence of Criminal Defendants at Trial & Legal Limits

Sometimes law enforcement does not issue Miranda warnings to a suspect immediately when they are taken into custody. They cannot question the suspect until they provide the warnings, regardless of whether the suspect has been arrested. The police will not be able to use the suspect’s statements at trial if they failed to provide the Miranda warnings when required or failed to respect the suspect’s decision to invoke their Miranda rights. In some cases, however, the prosecution may be able to draw inferences from the defendant’s silence after they were taken into custody but before law enforcement started questioning them. These statements were made before the defendant formally invoked their right to silence.

If the defendant was in custody, there may be restrictions on whether the prosecution can use their silence against them. However, not every police interaction reaches the level of custody. Courts generally have found that a routine traffic stop is not custody, even though a driver may not feel that they are able to leave. If a police officer starts asking more specific questions during a stop, and the stop lasts longer than the usual time, the interaction may become custodial. It also probably rises to the level of custody if the police officer explicitly tells an individual that they are not permitted to leave.

Using the Defendant’s Silence

Evidence of a defendant’s silence can be very persuasive to a jury, especially in a case in which the prosecution needs to prove a certain level of mental state. For example, a defendant who expressed no concern for victims who suffered injuries in a violent incident may be seen as reckless or callous. If the defendant had been taken into custody and had not yet received Miranda warnings, they may be able to persuade the court to prevent the prosecution from discussing their silence at trial. However, the success of this argument may depend on where the defendant lives, since different courts around the country have reached different results on the issue.

Some courts that have ruled for defendants in these situations have observed that allowing the prosecution to use this type of silence encourages law enforcement to delay giving a suspect their Miranda warnings. This tactic would undermine these important protections for defendants. Also, refraining from providing Miranda warnings for an extended time could be perceived as coercing a suspect to waive their right to remain silent.

Other courts have reached contrasting conclusions. They have been reluctant to find that a suspect is being pressured to speak if law enforcement has not yet issued the Miranda warnings and has not started interrogating them, even if the suspect is under arrest. In these opinions, a suspect’s silence should be considered a statement and made inadmissible only if they are being compelled to speak. Sometimes courts that have ruled for the prosecution on these issues have investigated whether the defendant invoked their Fifth Amendment privilege against self-incrimination. The evidence of their pre-Miranda silence might be admissible if they did not invoke this privilege. (However, this is a demanding standard to which to hold a suspect who is unfamiliar with the criminal justice system.)

Last reviewed October 2024