Court Ducks Question Whether Fifth Amendment Prohibits Testimony About a Defendant's Post Arrest, Pre-Miranda Silence During Squad Car Ride to Jail

State v. Lilienthal, Minn.S.Ct., 2/1/2017.  Without objection, during the state’s case in chief the prosecutor elicited testimony from an officer that following Mr. Lilienthal's arrest and placement in a locked squad car but before any Miranda warning he remained silent. SCOTUS has not addressed whether the Fifth Amendment prohibits evidence of a defendant’s post-arrest, pre Miranda silence. The federal circuits are evenly split.  Because there was no contemporaneous objection to the admission of this testimony, the appellate review standard is "plain error."  Because the federal circuits are split and SCOTUS hasn't said Justice Hudson could proclaim that any error in the admission of such evidence is not plain, under the “plain error” doctrine, and the analysis goes no further.

Mr. Lilienthal did timely object to the prosecutor’s two references to this silence during closing argument.  In keeping with its practice of punting whenever possible and eschewing guidance to the lower courts, the Justice says that even if these references were error they were harmless beyond a reasonable doubt.  End of discussion.

There are two end results, one neutral and the other not so much. The neutral end result is that the court consumes a lot of ones and zeros to produce an uninformative fourteen page opinion that simply doesn't answer the question that had prompted them to take the case in the first place.  It's really important, nonetheless, to keep in mind that because the court ducked the question, it remains unanswered whether evidence of post arrest, pre Miranda silence is admissible. 

The not good end result is that the Justice incorrectly suggests that the answer would be “yes”.  She says this based on a SCOTUS case from 2013, Salinas v. Texas, 133 S.Ct. 2174 (2013) in which Justice Alito said that the state may introduce a defendant’s silence to the one of many questions asked during a non-custodial interrogation. Alito said that a response of silence to a question is not the invocation of any Fifth Amendment privilege and so no error occurred in admitting testimony about that silence. 

Here, there was no interrogation, just a car ride in which Lilienthal kept his mouth shut because no one was talking to him.  Officers arrested Lilienthal somewhere up on the Iron Range and then drove him to jail in Duluth.  During the ride to jail, Lilienthal said nothing except to say that he didn’t need medical attention.  Other than that he wasn't asked any questions:

The record provides no evidence to indicate that Lilienthal ever made a statement in response to his arrest, except to deny that he needed medical attention. Deputy Feiro did not interrogate Lilienthal or read him a Miranda warning before he drove Lilienthal to the jail in St. Louis County.

This is a horrific opinion that some prosecutors and judges will surely misread and misapply.  Bring the popcorn because juries may soon be transfixed by squad videos supposedly indicative of guilt of arrested suspects riding silently in the back of the squad on the way to jail.