

 
Affirmed and Opinion filed March 17, 2011.
 
 
In The
 
Fourteenth Court of
Appeals
___________________
 
NO. 14-09-00395-CR
___________________
 
Genovevo Salinas, Appellant
 
V.
 
the State of Texas, Appellee

 

 
On
Appeal from the 230th District Court
Harris County,
Texas

Trial Court Cause No. 656,545
 

 
 
OPINION
A jury found appellant Genovevo
Salinas guilty of two counts of murder and sentenced him to twenty years’ imprisonment
and a $5,000 fine.  Salinas appeals his conviction contending that: (1) his
attorney rendered ineffective assistance at trial by failing to object to improper
opinion testimony regarding Salinas’s truthfulness, and (2) the trial court
improperly admitted evidence of Salinas’s silence during a pre-arrest
interview.  We affirm.  
I
Genovevo Salinas was
convicted of murdering brothers Juan and Hector Garza in the early morning
hours of December 18, 1992, after a night of partying at Hector’s apartment.  Hector’s
next-door neighbor, Martha Trevino, testified she was awakened around 6:30 or
6:45 a.m. by a “banging noise,” which she thought was a gunshot, followed by “a
scream . . . like someone was scared” and more gunshots.  She looked out a
window and saw a man, whom she thought to be in his twenties, wearing a white
hat and a long tan coat with a bulge in the side.  He ran down a flight of
stairs to the street where he jumped into the passenger seat of a waiting car
and sped away.  
Paramedics were already
on the scene when Houston Police Department officers Kari Richards and Cynthia Miller
arrived shortly after 7:00 a.m.  The officers learned Juan was dead inside the
apartment.  Hector was still alive but would be later pronounced dead at the
hospital.  The officers were unable to locate any witnesses at the scene except
for Trevino, who described the getaway car as dark-colored Camaro or Trans Am. 
Crime Scene Unit officer James Davis investigated the murder scene and found no
signs of forced entry or any weapons in the house.  He recovered six shotgun
shells from around the doorway of the apartment and in the living room. 
Investigators canvassed the apartment complex but were unable to identify any
suspects.  
Police were eventually able
to identify some of the people who attended the party the night before the
shooting, and several cooperated with the investigation.  Alberto “Flaco”
Paredes testified he dropped Juan off at the apartment after work.  He also
testified that he had seen a black Trans Am in the area a few weeks before the
shooting and saw the same car in the apartment complex parking lot the night
before the shooting.  Gilbert “Roland” Ledesma testified that two men he did
not know left the party in a dark-colored Trans Am.  Also at the party was Mike
Provazek, who referred police to Damien Cuellar.  Cuellar apparently was not at
the apartment but had information that led police to Salinas.  Although it is
not clear from the trial transcript, it appears Cuellar either told police
Salinas was at the party the night before the shooting, that Salinas owned a
shotgun, or both.  
Investigators went to
Salinas’s home, where he lived with his parents.  In the driveway was both a
red Camaro or Trans Am and a dark blue Camaro or Trans Am.  Police would later
learn that Salinas owned the red car while his mother drove the dark blue car. 
The investigators told the Salinas family about the murder investigation and obtained
consent to search the home.  Salinas’s father tendered a shotgun to the police. 
Salinas agreed to voluntarily accompany the officers to a police station for
questioning.  
Sergeant C.E. Elliott of
the Houston Police Department testified at trial that he questioned Salinas at
the police station for nearly an hour.  During the questioning, Salinas told
Sergeant Elliott he knew the Garza brothers through Mike Provazek and had
visited the apartment three or four times before the shooting.  According to Sergeant
Elliott’s testimony, Salinas said he had no disagreement with either of the
Garza brothers and did not own any weapons aside from the shotgun police took
into custody.  At that point in Sergeant Elliott’s testimony, the prosecutor
approached the bench, where the following exchange took place:
Ms. Garcia [Prosecutor]:  Your Honor, there was a Motion in
Limine granted that we should not be going into the defendant remaining silent
when asked if the ballistics from his shotgun were going to match the shotgun
shells found at the apartment.  And at this time, we’d like to be able to go
into that and show Sergeant Elliott’s testimony.  The defendant was not in
custody at this time.  He was free to leave and he was merely there for
investigatory purposes.
The Court:  Was this part of the same conversation that we just
heard?
Ms. Garcia:  Yes, Your Honor, same conversation.
Mr. McWilliams [Salinas’s counsel]:  Judge, I renew my same
objection, that he has—he can invoke the Fifth Amendment privilege whether he
was in custody or not.  He doesn’t have to talk to the police.
The Court:  Okay.  I agree, but unless you know that, in
fact, he did do that.  
Mr. McWilliams: He remained silent, Judge.
The Court:  Okay.  Thank you.  
The
court went off the record before Sergeant Elliott’s examination resumed.  A
little later, the following exchange, which forms the basis of both of
Salinas’s issues on appeal, took place:
Q.  Did you ask him, Sergeant Elliott, if the shotgun in
question here would match the shells recovered at the scene of the murder?
A.  Yes.
            Mr. McWilliams:  I renew the objection.
            The Court:  The objection is overruled.
Q.  (By Ms. Garcia) You can answer the question.
A.  Yes, I did ask him that.
Q.  And what was his answer?
A.  He did not answer.
Q.  Did he make any motions after that?  Did he—
A.  Yes.
Q.  What did he do?
A.  Showed signs of deception.
Q.  And what were they?
            Mr. McWilliams:  Object to that, Judge, as
calling for speculation.
            The Court:  Sustained.
            Mr. McWilliams:  I ask that the jury be
instructed to disregard that.  
The Court:  The jury—the objection is sustained.  The jury
will disregard the last statement of the officer.  
Q.  (By Ms. Garcia) Sergeant Elliott, what specifically did
the defendant do after he remained silent when you asked him that question?
A:  Looked down at the floor, shuffled his feet, bit his
bottom lip, clinched his hands in his lap, began to tighten up.  
Q:  Did you continue to question him after that?  
A:  Yes.
Q:  And did you ask him—did he answer any more questions?
A:  Yes.
***
Q:  So, Sergeant Elliott, approximately how many questions
would you say the defendant answered on that evening of your conversation?
A:  I’ve never counted the questions before because this
was just talking.
Q:  Well, let me ask it this way if that’s difficult to
answer.  About how long did this conversation last, if you remember?
A:  Two minutes short of an hour.
Q:  So, in this 58 minutes that you talked to Genovevo
Salinas on January 28th of 1993, how many questions did he not answer?
A:  One.
***
Q:  So, what changed before this conversation to alter this
conversation to cause you to take him into custody?
A:  My opinion.
Q:  And how did your opinion change?
A:  I had the opinion that he was being deceptive and lying
to me and I wanted to hold on to him.
After the interview, Sergeant
Elliott arrested Salinas on some outstanding traffic warrants.  The ballistics
analysis matched Salinas’s shotgun with the casings left at the murder scene. 
However, the Harris County District Attorney’s office declined charges, and
Salinas was released.  Police procured an additional statement from Cuellar,
who, according to Sergeant Elliott, came to the police station unannounced and
unsolicited to offer a third statement in which he said Salinas confessed he
had murdered the Garza brothers.  Cuellar testified that Salinas was his friend
and that he hoped police would solve the murder without his help, but after a
dream in which he saw the Garza brothers he felt compelled to come forward. 
Salinas was then charged with murder but eluded arrest until 2007, when he was
arrested while maintaining a false identity.  Salinas’s first trial resulted in
a mistrial, but the jury in his second trial found him guilty and sentenced him
to twenty years’ imprisonment and a $5,000 fine.  
II
            Salinas’s
first issue is his ineffective-assistance-of-counsel claim.  He complains that his
trial counsel failed to object when Sergeant Elliott opined that Salinas was
“deceptive and lying.”  Salinas argues this testimony was an inadmissible
opinion of Salinas’s truthfulness, and trial counsel’s failure to object
prejudiced his defense.
A
An accused is entitled
to reasonably effective assistance of counsel.  Strickland v. Washington,
466 U.S. 668, 687 (1984); King v. State, 649 S.W.2d 42, 44 (Tex. Crim.
App. 1983).  In reviewing claims of ineffective assistance of counsel, we apply
a two-prong test.  See Mallett v. State, 65 S.W.3d 59, 62 (Tex. Crim.
App. 2001).  To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that (1) his trial counsel’s representation fell
below an objective standard of reasonableness, and (2) there is a reasonable
probability that, but for counsel’s deficient performance, the result of the
trial would have been different.  Strickland, 466 U.S. at 687; Mallett,
65 S.W.3d at 62–63.  If a criminal defendant can prove that trial counsel’s
performance was deficient, he must still affirmatively prove that counsel’s
actions prejudiced him.  Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999).  To demonstrate prejudice, a defendant must establish a
reasonable probability that the result of the proceeding would have been
different if trial counsel had acted professionally.  Id.  A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.  Mallett, 65 S.W.3d at 63.  
When evaluating a claim
of ineffective assistance, the appellate court looks to the totality of the
representation and the particular circumstances of each case.  Thompson,
9 S.W.3d at 813.  In making such an evaluation, any judicial review must be
highly deferential to trial counsel and avoid the distorting effects of
hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)
(citing Strickland, 466 U.S. at 689).  Accordingly, there is a strong
presumption that counsel’s conduct fell within a wide range of reasonable
representation.  Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005).  The appellant bears the burden of proving by a preponderance of the
evidence that counsel was ineffective.  Thompson, 9 S.W.3d at 813
(citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)). 
To overcome the presumption of reasonable professional assistance, any
allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness.  Id.
at 814.  Direct appeal is usually an inadequate vehicle for raising such a
claim because the record is generally undeveloped.  Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005).  But, when no reasonable trial
strategy could justify the trial counsel’s conduct, counsel’s performance falls
below an objective standard of reasonableness as a matter of law, regardless of
whether the record adequately reflects the trial counsel’s subjective reasons
for acting as he did.  Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.
App. 2005).  
B
The determination of a
witness’s truthfulness lies solely within the jury’s province.  Yount v.
State, 872 S.W.2d 706, 710 (Tex. Crim. App. 1993).  Texas Rule of Evidence
702 prohibits expert witnesses from directly testifying that a particular
witness is truthful.  Tex. R. Evid. 702; see Yount, 872 S.W.2d at 711; Schutz
v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).  Non-expert testimony
may be offered to support the credibility of a witness by offering an opinion
or reputation evidence as to the witness’s character for truthfulness or
untruthfulness, but lay witnesses may not testify to the witness’s truthfulness
in the particular allegations.  See Tex. R. Evid. 608(a)(1); Schutz,
957 S.W.2d at 72.  While the prosecutor did not directly ask Sergeant Elliott
for his opinion as to Salinas’s truthfulness, Sergeant Elliott’s response can
be understood only as a statement that he generally disbelieved Salinas’s
insistence that he was not involved in the murders.  This assessment invaded
the province of the jury; it would have been proper for defense counsel to both
object to this testimony and request an instruction to disregard Sergeant
Elliott’s statement.  See Yount, 872 S.W.2d at 710–11.
Presuming without
deciding that counsel’s failure to object to this testimony would satisfy the
first prong of Strickland, appellant’s ineffective-assistance claim
still fails because the second Strickland prong is not satisfied.
Salinas has not shown a reasonable probability that, but for counsel’s presumptively
deficient performance, the result of the trial would have been different.  See
Strickland, 466 U.S. at 687; Mallett, 65 S.W.3d at 63.  
It is true that other
courts have found that a failure to object to improper opinion testimony was
sufficient to undermine confidence in the outcome of the case.  See Fuller
v. State, 224 S.W.3d 823, 836–37 (Tex. App.—Texarkana 2007, no pet.); Sessums
v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d); Miller
v. State, 757 S.W.2d 880, 884 (Tex. App.—Dallas 1988, pet. ref’d); Garcia
v. State, 712 S.W.2d 249, 253 (Tex. App.—El Paso 1986, pet. ref’d). 
However, each of these instances arose from sexual-assault or
indecency-with-a-child cases in which, as the Fuller court recognized,
“the victim’s credibility was the only real issue at trial and counsel
repeatedly or entirely failed to object to the introduction of testimony on the
truthfulness and credibility of the victim’s allegations.”  Fuller, 224
S.W.3d at 836.  In these cases, the deleterious effect of counsel’s failure to
object to improper opinion testimony was worsened because the allegations
hinged on the victim’s credibility.
We previously noted this
distinction in Lane v. State, another sexual-assault-against-a-child
case in which trial counsel failed to object to two expert reports containing opinion
testimony concerning the complainant’s truthfulness.  257 S.W.3d 22, 27 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref’d).  We held the second Strickland
prong had not been satisfied because the complainant’s sister offered testimony
corroborating the complainant’s allegations.  Id. at 28–29.  Therefore,
“resolution of the credibility issue was not dependent upon the challenged
expert testimony.”  Id. at 29.  
Similarly, the case
before us does not hinge on a single witness’s credibility.  The evidence
against Salinas includes Cuellar’s testimony that Salinas confessed to the
crimes, ballistics testing that matches a shotgun in the Salinas family home to
the crime scene, and two cars at the Salinas family home that are potential
matches of the car Martha Trevino described as fleeing the apartment complex immediately
after the shootings.  Additionally, we note that the failure to object to
improper opinion testimony in this case occurred only once.  Moreover, the
State did not ask the witness to opine on Salinas’s truthfulness; instead, the
witness offered the opinion as an answer to why he arrested Salinas.  By contrast,
in the sexual-assault-against-a-child cases in which a Strickland claim
was sustained, counsel “repeatedly or entirely failed to object to the
introduction of testimony on the truthfulness and credibility of the victim’s
allegations.”  Fuller, 224 S.W.3d at 836.  It has long been a principle
of an ineffective-assistance-of-counsel analysis that “[a]n isolated failure to
object to certain procedural mistakes or improper evidence does not constitute
ineffective assistance of counsel.”  Ingham, 679 S.W.2d at 509.  We
overrule Salinas’s first issue.  
III
            In
his second issue Salinas asserts the trial court erred in admitting testimony
of his pre-arrest, pre-Miranda silence.  Sergeant Elliott testified that
Salinas remained silent when asked if ballistics testing on the shotgun his
father surrendered to police would match the shell casings found at the murder
scene.  According to Sergeant Elliott, Salinas showed “signs of deception” when
he failed to respond:  looking down at the floor, shuffling his feet, biting
his bottom lip, clinching his hands in his lap, and tightening up.  Sergeant
Elliott further testified that Salinas answered every question but this one during
the nearly hour-long interview.  Defense counsel objected to the testimony on
the grounds that Salinas had invoked his Fifth Amendment privilege against
self-incrimination by remaining silent.  The trial court overruled the
objection.  During closing argument, the prosecutor argued, over defense
counsel’s objection, that Salinas’s silence was evidence of his guilt:    
The police officer testified that he wouldn’t answer that
question.  He didn’t want to answer that.  Probably the first time he realizes
you can do that.  What?  You can compare those?  You know, if you asked
somebody—there is a murder in New York City, is your gun going to match up the
murder in New York City?  Is your DNA going to be on that body or that person’s
fingernails?  Is [sic] your fingerprints going to be on that body?  You are
going to say no.  An innocent person is going to say:  What are you talking
about?  I didn’t do that.  I wasn’t there.  He didn’t respond that way.  He
didn’t say: No, it’s not going to match up.  It’s my shotgun.  It’s been in our
house.  What are you talking about?  He wouldn’t answer that question.  
We must
determine whether the Fifth Amendment prohibits the use of Salinas’s
pre-arrest, pre-Miranda silence as substantive evidence of his guilt.  
The law is clear that if
a defendant testifies, his pre-arrest silence can be used to impeach him.  See
Jenkins v. Anderson, 447 U.S. 231, 238–40 (1980).  The use of pre-arrest
silence to impeach does not violate the Fifth Amendment because “impeachment
follows the defendant’s own decision to cast aside his cloak of silence and
advances the truth-finding function of the criminal trial.”  Id. at 238. 
Still, the United States Supreme Court has yet to decide what protections, if
any, the Fifth Amendment affords to pre-arrest silence when the defendant does
not testify and his silence is introduced by the State not for impeachment but
in its case-in-chief.[1] 

            There
is little precedent from Texas courts to provide guidance.  In State v. Lee,
the prosecutor referred to the defendant’s pre-arrest silence in an opening
statement.  15 S.W.3d 921, 922 (Tex. Crim. App. 2000), overruled on other
grounds, Ex Parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).  The
Court of Criminal Appeals determined that, under the uncertain state of the law
at that time, the prosecutor’s actions could not have been intentional or reckless
and clearly erroneous. [2] 
Id. at 924–26.  A sister court of appeals has addressed the issue, but did
not ultimately decide it. [3] 
Hennessy v. State, 268 S.W.3d 153, 161 (Tex. App.—Waco 2008, pet. ref’d)
(assuming without deciding Fifth Amendment does not permit use of pre-arrest
silence as substantive evidence of guilt).  
The federal courts of
appeals are split on the issue.  The First, Sixth, Seventh, and Tenth Circuits
have held that pre-arrest, pre-Miranda silence is not admissible as
substantive evidence of guilt.  Combs v. Coyle, 205 F.3d 269, 283 (6th
Cir. 2000), cert. denied, 504 U.S. 977 (2002); United States v.
Burson, 952 F.2d 1196, 1200–01 (10th Cir. 1991), cert denied, 503
U.S. 997 (1992); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989),
cert denied, 493 U.S. 969 (1989); United States ex. rel. Savory v.
Lane, 832 F.2d 1011, 1017–18 (7th Cir. 1987).  The Fifth, Ninth, and
Eleventh Circuits, on the other hand, have held that pre-arrest, pre-Miranda
silence is admissible as substantive evidence of guilt.  United States v.
Oplinger, 150 F.3d 1061, 1066–67 (9th Cir. 1998), overruled on other
grounds, United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010)
(per curiam); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.
1996); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991).  
We agree with the Fifth,
Ninth, and Eleventh Circuits.  The Fifth Amendment provides that “[n]o person .
. . shall be compelled in any criminal case to be a witness against
himself.”  U.S. Const. amend. V (emphasis added).  A plain reading of the
amendment reveals that only government compulsion triggers its protections
against self-incrimination.  The Fifth Amendment does not “preclude the proper
evidentiary use and prosecutorial comment about every communication or lack
thereof by the defendant which may give rise to an incriminating
inference.”  Zanabria, 74 F.3d at 593 (emphasis in original).  The
otherwise proper acquisition or use of evidence which does not involve
compelled testimonial self-incrimination of some sort does not offend the Fifth
Amendment.  See Fisher v. United States, 425 U.S. 391, 399 (1976).  Absent
a showing of government compulsion, the Fifth Amendment simply has nothing to
say on the admissibility of pre-arrest, pre-Miranda silence in the
State’s case-in-chief.  We therefore hold the Fifth Amendment has no
applicability to pre-arrest, pre-Miranda silence used as substantive evidence
in cases in which the defendant does not testify.  
In his concurrence in Jenkins,
Justice Stevens first advanced the rationale supporting our holding.  Because
the privilege against compulsory self-incrimination is irrelevant to whether
one remains silent when under no official compulsion to speak, Justice Stevens
would have rejected the defendant’s Fifth Amendment claim.  See Jenkins,
447 U.S. at 241 (Stevens, J., concurring).  We agree with Justice Stevens that
the proper inquiry is “whether the petitioner was in a position to have his
testimony compelled and then asserted his privilege, not simply whether he was
silent.”  Id. at 241, 243–44.  A contrary view ignores the unambiguous
words of the Fifth Amendment.  See Oplinger, 150 F.3d at 1067.
Salinas does not argue he was in custody during the
interview, and Sergeant Elliott testified Salinas was never handcuffed and was
free to leave.  Salinas’s interview is therefore properly categorized as a
voluntary encounter with police.  See Florida v. Bostick, 501 U.S. 429,
434 (1991); State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App.
2000).  Miranda warnings, therefore, were neither issued nor required. 
There was no government compulsion in the pre-arrest, pre-Miranda
questioning in which Salinas voluntarily participated for almost an hour. 
Accordingly, the Fifth Amendment privilege against self-incrimination was not
triggered and did not prevent the State from offering Salinas’s failure to
answer the question at issue.  See Oplinger, 150 F.3d at 1067.  We
overrule Salinas’s second issue.  
* * *
For the foregoing reasons, we affirm the trial court’s
judgment.
 
 
                                                                                    
                                                                        /s/        Jeffrey
V. Brown
                                                                                    Justice
 
 
 
Panel consists of Justices Anderson, Frost, and Brown
Publish — Tex. R. App. P. 47.2(b).




[1] The question before the Jenkins
court was whether pre-arrest silence could be used to impeach a testifying
defendant.  The Court had previously held that cross-examining a testifying
defendant at his second trial with his decision not to testify at his first
trial was not an impermissible burden on the defendant’s Fifth Amendment
rights.  See Raffel v. United States, 271 U.S. 494, 499 (1926).  The Jenkins
court held a testifying defendant could be impeached with pre-arrest silence
because “the rule of Raffel clearly permits impeachment even if the
pre[-]arrest silence were held to be an invocation of the Fifth Amendment right
to remain silent.”  Jenkins, 447 U.S. at 235 n.2.  Accordingly, the Jenkins
court did not consider whether or under what circumstances pre-arrest silence
may be protected by the Fifth Amendment.  See id.  


[2] The court in Lee
provided a survey of decisions from other states addressing this issue.  15
S.W.3d at 924 n.5.  Some courts have held that pre-arrest, pre-Miranda
silence is not admissible as substantive evidence of guilt.  State v. Moore,
131 Idaho 814, 965 P.2d 174, 180 (1998); State v. Dunkel, 466 N.W.2d
425, 428–29 (Minn. Ct. App. 1991); State v. Rowland, 234 Neb. 846, 452
N.W.2d 758, 763–64 (1990); People v. DeGeorge, 73 N.Y.2d 614, 543
N.Y.S.2d 11, 541 N.E.2d 11, 13 (1989); Hartigan v. Commonwealth, 31 Va.
App. 243, 522 S.E.2d 406, 410 (1999); State v. Easter, 130 Wash. 2d 228,
922 P.2d 1285, 1291–92 (1996); Tortolito v. State, 901 P.2d 387, 390
(Wyo. 1995).  Courts in other states have held that pre-arrest, pre-Miranda
silence does not implicate the Fifth Amendment.  State v. Leecan, 198
Conn. 517, 504 A.2d 480, 484 (1986); Key-El v. State, 349 Md. 811, 709
A.2d 1305, 1310–11, overruled by Weitzel v. State, 384 Md. 451,
863 A.2d 999, 1002, cert. denied, 525 U.S. 917 (1998); State v.
Masslon, 746 S.W.2d 618, 626 (Mo. Ct. App. 1988); State v. Dreher,
302 N.J. Super. 408, 695 A.2d 672, 705 (App. Div. 1997), disapproved by State
v. Brown, 190 N.J. 144, 919 A.2d 107, 116 n.1 (N.J. 2007), cert. denied,
152 N.J. 10, 702 A.2d 349 (1997), cert. denied, 524 U.S. 943 (1998); State
v. Helgeson, 303 N.W.2d 342, 348–49 (N.D. 1981).


[3] In Hennessy, the
Waco court of appeals cited several commentators who have written on this issue
and noted the split of authority.  268 S.W.3d at 161 n.2.  Some have concluded
that pre-arrest silence ought to be protected by the Fifth Amendment and
inadmissible as substantive evidence of guilt.  See Meaghan Elizabeth
Ryan, Comment, Do You Have the Right to Remain Silent?: The Substantive Use
of Pre-Miranda Silence, 58 Ala. L.
Rev. 903 (2007); Sara Ciarelli, Pre-arrest Silence: Minding that Gap
Between Fourth Amendment Stops and Fifth Amendment Custody, 93 J. Crim. L. & Criminology 651
(2003); Marcy Strauss, Silence, 35 Loy.
L.A. L. Rev. 101 (2001); Maria Noelle Berger, Note, Defining the
Scope of the Privilege Against Self-Incrimination: Should Prearrest Silence be
Admissible as Substantive Evidence of Guilt?, 1999 U. Ill. L. Rev. 1015 (1999); Jane Elinor Notz, Comment,
Prearrest Silence as Evidence of Guilt: What You Don’t Say Shouldn’t Be Used
Against You, 64 U. Chi. L. Rev.
1009 (1997).
Others have not.  See Michael J. Hunter, The
Man on the Stairs Who Wasn’t There: What Does a Defendant’s Pre-arrest Silence
Have to do with Miranda, the Fifth Amendment, or Due Process?, 28 Hamline L. Rev. 277 (2005); Adam M.
Stewart, The Silent Domino: Allowing Pre-arrest Silence as Evidence of Guilt
and the Possible Effect on Miranda, 37 Suffolk
U.L. Rev. 189 (2004); Jeffrey D. Waltuck, Comment, Remaining Silent:
A Right with Consequences, 38 J. Marshall
L. Rev. 649 (2004); Stefanie Petrucci, Comment, The Sound of Silence:
The Constitutionality of the Prosecution’s Use of Prearrest Silence in its
Case-in-Chief, 33 U.C. Davis L. Rev.
449 (2000).


