The Constitution Is All Fine and Good, But Don’t Forget the Rules of Evidence

February 26, 2013
By Hanging Out with Carl Gunn


  • Federal evidentiary rules place additional limits on use of a defendant’s silence, because, in the words of the Supreme Court, it’s “inherently ambiguous.”
  • There’s a multitude of reasons an arrestee – or even a non-arrestee – may remain silent when confronted by law enforcement officers.
  • Think about such possible reasons in your case, then argue that your client’s silence in particular is ambiguous, lacks probative value as a result, and so should be excluded under Rule 403 of the Federal Rules of Evidence.


Some of you may have noticed a qualifier in the first sentence of the last paragraph of my post last week about the Supreme Court case law on use of a defendant’s pretrial silence. I spoke of the “constitutional rule.” This qualifier is important because there remain additional potential protections in the rules of evidence. All that’s addressed in the cases discussed in my post last week is what the Constitution does or doesn’t allow. And teh Supreme Court emphasized in Jenkins v. Anderson, 447 U.S. 231 (1980 that “[e]ach jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.” Id. at 239.

Particularly important for those of us who practice in federal court, Jenkins also noted that “this Court has exercised its supervisory powers over federal courts to hold that prior silence cannot be used for impeachment where silence is not probative of a defendant’s credibility and where prejudice to the defendant might result.” Id. The Court further noted that “[c]ommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Id. (emphasis added).

The case to which Jenkins was referring when it spoke of the Supreme Court’s past exercise of supervisory powers over federal courts was the case of United States v. Hale, 422 U.S. 171 (1975), which was also discussed in last week’s post. And the statement from Hale that I quoted in last week’s post about silence being “so ambiguous that it is of little probative force,”Hale, 422 U.S. at 176, was a statement premised as much on general evidentiary principles as the effect of Miranda warnings. For example, the Court noted that “silence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others,” and that “[f]ailure to contest an assertion . . . is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question.” Id. at 176 (citing J. Wigmore, Evidence §§ 1042, 1071 (J. Chadbourn rev. 1970)) (emphasis added). The Court then noted a variety of reasons why an arrestee might remain silent:

At the time of arrest and during custodial interrogation, innocent and guilty alike – perhaps particularly the innocent – may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. (Citation omitted.) He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation exceed those of questioning before a grand jury and compound the difficulty of identifying the reason for silence. (Footnote omitted.)

Hale, 422 U.S. at 177.

So when you’re in federal court, think about fact-specific evidentiary arguments tied to these sorts of thoughts, and argue that there’s more than just constitutional analysis for the court to conduct. Argue that even if there isn’t a constitutional bar to admissibility, the evidence of your client’s silence isn’t sufficiently probative under evidentiary rules like Rule 403 of the Federal Rules of Evidence. And look for circumstances in your specific case that support that argument. Was something else said to your client that would give him reason to wait to speak, such as a statement that he was going to be taken to court and would get an attorney there? Had the arresting officers acted in an aggressive or tricky way (e.g., in an undercover capacity) that would give your client reason not to trust that they’d believe or accurately record what he said? In a pre-arrest – or post-arrest – situation, was your client approached without warning and without an opportunity to gather his thoughts or his records, which a normal person – even an innocent one – might want to gather before talking about something that was relatively complex and/or happened days, weeks, months, or even years earlier? These and a multitude of other case-specific circumstances might fit very readily into the reasons for Hale’s statement that “[i]n most circumstances silence is so ambiguous that it is of little probative force,” id., 422 U.S. at 176 (emphasis added).