You Have the Right to Remain Silent—But Only if You’re Told You Do?

BACKGROUND

The Fifth Amendment to the United States Constitution states that “no person . . . shall be compelled in any criminal case to be a witness against himself.” The Supreme Court held in Miranda v. Arizona that interrogation of an individual who is in government custody is presumed to be compulsive. Reciting the warnings that the Court spelled out in Miranda, including the “right to remain silent,” provides a safeguard against violating a criminal suspect’s Fifth Amendment right to be free from self-incrimination in the coercive setting of government custody. Implicit within Miranda warnings is the assurance that a defendant’s silence “will carry no penalty.” Wainwright v. Greenfield. Consequently, prosecution cannot use a criminal defendant’s silence after Miranda warnings have been given in its case-in-chief to prove the defendant’s guilt. 

Surprisingly, the question remains as to whether a defendant’s silence in response to government interrogation post-arrest but pre-Miranda warnings can be used against the defendant at trial as substantive evidence of guilt. 

THE ISSUE

Can the prosecution use a criminal defendant’s silence after the defendant is in custody but before Miranda warnings are given as evidence of guilt in its case-in-chief? 

THE SPLIT

In the 2013 case Salinas v. Texas, the Supreme Court held that a defendant’s non-response to a question by law enforcement while not in custody is admissible and can be used against the defendant as evidence of guilt. But the Court did not explicitly state whether a defendant’s pre-Miranda silence in response to interrogation is admissible if the defendant is in custody. While the Ninth, Tenth, and D.C. Circuits prohibit using post-arrest, pre-Miranda warning silence as substantive evidence of guilt, the Fourth, Eighth, and Eleventh Circuits allow the prosecution to use a defendant’s silence at any timeprior to the issuance of Miranda warnings.

On one side of the split, the Ninth Circuit has held that prosecution may only use a defendant’s post-arrest, pre-Miranda silence for the purpose of impeaching the defendant’s testimony, but not for its case-in-chief. In United States v. Hernandez, the court noted that a defendant’s right to remain silent is triggered by any custodial interrogation, not just when the defendant has been read Miranda rights. The D.C. Circuit went one step further in U.S. v. Moore, stating that “custody not interrogation is the triggering mechanism for the right to pretrial silence under Miranda.” The D.C. Circuit’s holding means that the prosecution cannot comment on a defendant’s silence while in custody prior to Mirandawarnings, even if there has been no interrogation. 

In contrast, in United States v. Cornwell, the Fourth Circuit held that presenting video footage at trial which showed the defendant’s silence in response to police questioning did not violate his Fifth Amendment rights “[b]ecause Cornwell had not received Miranda warnings at the time the video was recorded.” Similarly, the Eight Circuit in United States v. Osuna-Zepeda held that presenting evidence to the jury about a defendant’s failure to make a statement at the time of his arrest, but before he was given Miranda warnings, did not violated his Fifth Amendment right. The court noted that “an arrest by itself is not government action that implicitly induces a defendant to remain silent.”  

Eleventh Circuit precedent was established in 1991 in United States v. Rivera, in which the court held that the prosecution could comment at trial on the defendant’s silence when she was in custody because Miranda warnings had not yet been given. In 2016, the Eleventh Circuit in United States v. Wilchcombe followed the Rivera precedent, but acknowledged the entrenched circuit split and the lack of guidance from the Supreme Court. The court noted that Salinas was not controlling because in contrast to the defendants in Wilchcombe, the Salinas defendant was not in custody at the time of the silence in question. Nevertheless, the Eleventh Circuit in Wilchcombe affirmed a lower court decision to allow the prosecution to use the defendants’ silence after they were apprehended but before Miranda warnings were delivered as proof of guilt.

LOOKING FORWARD

The Supreme Court has the opportunity to resolve this circuit split by granting certiorari in Palacios-Solis v. U.S. In Palacios-Solis, the U.S. Coast Guard stopped and boarded a vessel in the Pacific Ocean and detained three defendants who were suspected of smuggling cocaine. The Coast Guard officers did not recite Miranda warnings, and the defendants remained silent in the face of the officers’ questions. The Eleventh Circuit, based on its own precedent, declined to overturn the district court’s decision to allow the prosecution to use the defendants’ pre-Miranda silence as evidence of guilt. The court again acknowledged the circuit split but, as in Wilchcombe, chose to follow its circuit precedent because the Supreme Court has not addressed this specific issue. Defendants have filed a petition for writ of certiorari. 

The Supreme Court should grant certiorari to resolve this deep circuit split and to ensure that law enforcement and lower courts honor the constitutional rights of criminal defendants in custody. Until the split is resolved, defendants’ right to remain silent will vary by jurisdiction. In some circuits, their silence after arrest, but before they have been told they have the right to remain silent, can be used against them at trial. 

Prosecution cannot use defendants’ responses to custodial interrogation against them if they have not received Miranda warnings, nor can prosecution use non-response to questions after Miranda warnings have been given. But in the Fourth, Eighth, and Eleventh Circuits, the government can use defendants’ silence in the face of custodial interrogation against them when police do not recite Miranda warnings. As Judge Rosenbaum’s state in her concurring opinion in Palacios-Solis, such an anomalous result “eviscerates the purposes of Miranda” and creates a significant risk of violating the Fifth Amendment rights of criminal defendants in those circuits. A suspect in custody cannot voluntarily relinquish the privilege against self-incrimination if he doesn’t know he has the privilege in the first place.

Additionally, as  the D.C. Circuit noted in U.S. v. Moore, allowing the prosecution to comment at trial on a defendant’s pre-Miranda silence while in custody provides a perverse incentive for law enforcement to delay Miranda warnings and use a defendant’s refusal to answer questions against him or her at trial. Until the Supreme Court clarifies this issue and resolves the circuit split, the extent of a defendant’s right to remain silent after arrest will vary by jurisdiction. 

The Kingsley Conundrum: Does the Fourteenth Amendment Protect the Rights of Pretrial Detaineers More than the Eighth Amendment Protects Prisoners?

BACKGROUND

Both prisoners and pretrial detainees may bring claims for violation of their constitutional rights under 42 U.S.C § 1983. The Eighth Amendment protects prisoners from “cruel and unusual punishments.” For claims of Eighth Amendment violations, prisoners must show that the actions of prison officials were objectively unreasonable under the circumstances. These claims also require a subjective component—courts inquire into the officials’ “state of mind” to determine whether they acted “maliciously and sadistically” to violate the prisoner’s rights. The prison officials must have demonstrated a “subjective awareness of the risk of harm.”

The rights of pretrial detainees, however, have both a different constitutional basis and different implications. Their rights are protected under the Fourteenth Amendment’s Due Process Clause and because they have not been convicted, they are entitled to a constitutional presumption of innocence. Accordingly, under Bell v. Wolfish (1979), they cannot be punished at all and may prevail on claims of rights violations by showing that the defendants’ actions were not “rationally related to a legitimate government purpose.”

But the differences between prisoners and pretrial detainees don’t end there. Though plaintiffs under both the Eighth Amendment and the Fourteenth Amendment must show that prison officials acted with “deliberate indifference,” the standard of what constitutes “deliberate indifference” under the Fourteenth Amendment is murky at best. In Kingsley v. Hendrickson (2015), the Supreme Court held that pretrial detainees only need to show that an officer’s use of force was objectively unreasonable in excessive force claims. This contrasts with similar claims by prisoners, where they must show that the officer’s actions were subjectively unreasonable. In other words, pretrial detainees need not demonstrate that officers acted “maliciously and sadistically to cause harm,” or even be subjectively aware that their use of force was excessive.

But Kingsley left open several questions that the Court declined to answer. The Court did not note whether its holding extends beyond excessive force claims, for example, to claims involving improper conditions of confinement or inadequate medical care.

THE ISSUE

Did Kingsley alter the standard for all claims by pretrial detainees or just claims involving excessive force? Do any claims by pretrial detainees require a subjective consideration of the defendant’s state of mind?

THE SPLIT

Circuits are split on whether to apply the Kingsley Standard to claims regarding conditions of confinement and inadequate medical care brought by pretrial detainees. The Second, Seventh, and Ninth Circuits have interpreted Kingsley as altering the standard for such claims, while the Fifth, Eighth, and Eleventh Circuits have held that the standard is unchanged.

The Ninth Circuit in Castro v. Los Angeles County (2015) categorically stated that the Kingsley holding applies broadly and extends beyond excessive force claims to protect other rights of pretrial detainees. Specifically, the Ninth Circuit held that Kingsley also applies to conditions of confinement claims. The court reasoned that the Supreme Court in Kingsley “did not limit its holding to ‘force’ but ‘spoke to the challenged government action’ generally.”

Likewise, the Second Circuit in Darnell v. Pinero (2017) held that Kingsley no longer requires a subjective component for conditions of confinement claims by pretrial detainees. The Court reasoned that “the Due Process clause can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.” Therefore, according to the Second Circuit, pretrial detainees must only show that the defendants’ actions were objectively unreasonable under the circumstances.

The Seventh Circuit recently joined the Second and Ninth Circuits in Miranda v. Lake County (2018), and held that the “punishment model” of the Eighth Amendment is inappropriate for pretrial detainees. Therefore, demonstration of the defendant’s “punitive intent” in denying necessary medical care is not required under Fourteenth Amendment Due Process claims for pretrial detainees.  The Court held that “[m]edical-care claims brought by pretrial detainees under the Fourteenth Amendment are subject only to the objective reasonableness inquiry identified in Kingsley.”

          In contrast, the Fifth, Eighth, and Eleventh Circuits have held that Kingsley only applies narrowly to excessive force claims and does not extend to claims related to conditions of confinement or inadequate medical care.

In Anderson v. Concordia Parrish Correctional Facility (2017), the Fifth Circuit stated that in a claim for inadequate security and impermissibly delayed medical care, “a pretrial detainee must show subjective deliberate indifference to by defendants.”  Perhaps illustrating its view that Kingsley is inapplicable, the majority in Anderson did not even discuss Kingsley in its opinion.

Similarly, the Eleventh Circuit decided not to apply the Kingsley Standard to a claim of deliberate indifference to a pretrial detainee’s medical needs in Dang ex rel. Dang v. Seminole County Sheriff (2017). Despite Kingsley, the Eleventh Circuit in Dang evaluated the plaintiff’s claims “under the same standard as a prisoner’s claim of inadequate care under the Eighth Amendment.” The Eleventh Circuit here interpreted Kingsley as only applying to claims of excessive force by pretrial detainees.

Finally, the Eighth Circuit joined the debate and sided with the Fifth and Eleventh Circuits in Whitney v. St. Louis (2018), where it held that although pretrial detainees have a “clearly established constitutional right…to have [their] serious medical needs attended to,” the establishment of deliberate indifference to medical needs still “requires both an objective and a subjective analysis.” 

LOOKING FORWARD

          Until the circuit split is resolved, the standard required for claims of inadequate medical care or conditions of confinement by pretrial detainees will be vary by jurisdiction. One example where this has an impact is on claims for inadequate psychiatric care brought by the estates of prisoners who commit suicide in pretrial detention. Regarding conditions of confinement, an example would be a failure to protect claim when a pretrial detainee is harmed by another inmate.  To ensure that the rights of pretrial detainees under the Fourteenth Amendment Due Process Clause are addressed consistently, the Supreme Court will need address whether Kingsley applies broadly or whether its application is limited to excessive force claims.