Constitutional provisions come to us “on faded parchment,” and so it goes with the Fifth Amendment privilege against compelled self-incrimination. “No person shall be … compelled in any criminal case to be a witness against himself.” Sounds easy enough. But the devil, of course, is in the details.
After all, since criminal defendants could not testify at the American Founding—they were disqualified as interested party—what were the Framers thinking? Probably, that there should never be Star Chamber adjudication in America, meaning no “cruel trilemma of self-accusation [the damning truth], perjury [the lie] or contempt [for refusing to speak]”—there will be a fourth option of silence. Then again, that’s a hard fit with the reality of the ‘uncounseled-defendant-speaks trial’ of yesteryear, and so, again, this gets complicated, including when it comes to trial use of interrogation silence.
I will get to those details, particularly as relevant to the Tenth Circuit’s opinion in United States v. Ward, No. 23-7088 (10th Cir. May 6, 2025). But, first, let’s first frame the issue.
And let’s begin with a statement in favor of the Privilege by famed defense lawyer Edward Bennett Williams (think Williams & Connolly):
If our primary goal were the punishment of the guilty at all costs, it would be difficult to find contemporary justification for this [Fifth Amendment privilege]. Without doubt it hinders the conviction of the guilty far more frequently than it protects the rights of the innocent. Attempts at pragmatic justification of the privilege are often made on the ground that it prevents the third degree and encourages more scientific methods of crime detection. These arguments are far from conclusive. … The real justification for the privilege must rest upon higher grounds. …
Dean Erwin Griswold of Harvard gave one of the clearest expressions of the justification for the privilege when he wrote: “I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized. As I have already pointed out, the establishment of the privilege is closely linked historically with the abolition of torture. Now we look upon torture with abhorrence. But torture was once used by honest and conscientious public servants as a means of obtaining information about crimes which could not otherwise be disclosed. We want none of that today, I am sure. For a very similar reason, we do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands. We have through the course of history developed a considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil man is a human being.”
The same view was adopted by Abe Fortas of the District of Columbia bar, who stated: “The fundamental value that the privilege reflects is intangible, it is true; but so is liberty, and so is a man’s immortal soul. A man may be punished, even put to death, by the state; but if he is an American or an Englishman or a free man anywhere, he should not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be extracted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument.”
The justification of the privilege has been challenged on the ground that it consists of a conclusion without explanation or proof. The problem is that explanation and proof require reference to more basic principles. The privilege against self-incrimination is a most basic principle. It is a fundamental attitude rather than a conclusion of law. As such it can be accepted or rejected, but it cannot easily be proved.
That’s from Williams’ 1962 book, One Man’s Freedom, and, like much of the work, for me it stands the test of time. Some (myself among them) believe there cannot be meaningful debate regarding fundamental moral disagreements, and the Privilege, says Williams, may fall into that camp. Now, that doesn’t make the details of application easy… yet it sometimes makes one more patient with difficult details when she understands the matter to be important.
With that backgrounding, let’s dig in. But let’s first consider non-legal silence, meaning silence in our everyday lives.
Is silence in response to a question generally probative? Sure. “Did you eat the last cookie?!” Silence. What parent will infer nothing? To be sure, there are innocent explanations; perhaps the child just suffered a severe stroke, and cannot speak. But, as the law of parsimony (Occam’s Razor) teaches… it is more likely that consciousness of guilt has rendered her silent.
“Did you sleep with him/her?!” Silence. Inferences will be made.
So, silence in response to questions can be probative, and it is not generally socially acceptable in American culture to simply ignore questions, no matter how annoying they may be. Lord knows, there are plenty of times that we curmudgeons would prefer to be silent in the face of chatty folk, but we normally do otherwise precisely for this reason.
Now let’s transition to the legal context, beginning with the Griffin v. California issue. Is a defendant’s refusal to take the stand in a criminal trial generally probative? Much less so, given the substantial reasons a factually innocent defendant might wish to avoid testifying, from general timidity and poor skills of articulation under pressure, to prior convictions (or fruits of some constitutional violations) that then become game for impeachment, to simply a refusal to acknowledge an entirely unjust prosecution. There are several reasons independent of guilt not to testify, and the choice is a planned, counseled, and strategic decision, not a spur-of-the-moment ‘freeze.’ In short, silence tends to be inscrutable in this context. And since any commentary or instruction regarding a defendant’s choice not to testify tends to confuse, or at least distract from, the State’s burden of proving each and every element of the crime beyond a reasonable doubt, well, it simply isn’t worth the candle. Griffin’s got that one right.
(And then so does Carter v. Kentucky, recognizing a defense right to a ‘no inference’ jury instruction, before all went nuts in Lakeside v. Oregon, permitting such instruction over defense objection. Now, it does make sense that a court typically can do what is correct, regardless of what a defendant (or prosecutor) wishes. But to be so committed to the jury not drawing an adverse inference that we insist upon telling the jury just that… even when the defendant thinks doing so makes just such an inference more likely? Isn’t the person with her neck in the noose the most-likely best judge? You must not picture an elephant! But you just did. So, I’m with Griffin and Carter, but not Lakeside.)
To recap, Griffin is best seen as (1) the incoherence of trial silence, (2) combined with therefore needless confusion regarding the State’s burden of proof. Sure, I’d rewrite the Court’s opinion on the ‘why,’ but I agree with the rule, whether we find it in the Due Process Clause or the Privilege.
Creeping nearer to the facts of the Tenth Circuit in Ward, what then of post-arrest, post-Mirandizing complete silence. So…
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided for you at State expense.”
And then arrestee silence. She says nothing. Or, she explicitly invokes her right to silence and/or her right to such attorney.
Should the Constitution permit the State to introduce that silence against the defendant at trial? What on earth for?! Talk about inscrutable! In this situation, with an arrestee just promised a right to silence and that speaking will be used against her, it borders on the bizarre to allege anything incriminating from silence; so, says the Court in Doyle v. Ohio, due process steps in to forbid any such use. (Including, says Wainwright v. Greenfield, any use for purposes of impeachment.) In the Supreme Court’s words, this sort of silence is “insolubly ambiguous.” Agreed.
So far, so good.
Now we are ready for Ward. What if the Mirandized arrestee waives her right and does speak, admitting her role in a joint crime, in Ward a violent attack on three persons. And then as defendant she later chooses to testify at trial, now adding that the reason for her role was duress—she was acting under threat from the other criminal. Can the prosecutor ask why she did not allege that coercion during the police interrogation? She was happy enough to admit her role in the crime then. Why not also allege this motivation?
I have trouble seeing how this is fundamentally unfair. In this situation, as in ‘Did you eat the last cookie?,’ silence strikes me as quite probative. Sure, there are potentially innocent explanations for why this defense wasn’t raised until trial. But there is also the straightforward one: she didn’t know to allege it until she had lawyered up and had time to plan. So, here I feel argument on you-answered-many-things-but-not-this seems customary grist for the jury mill, as when Salinas clammed up upon being asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime, but in no manner seemed to invoke the constitutional privilege. Such a legal line is imperfect, to be sure, as it may be hard to know precisely when a layperson is attempting to invoke a constitutional right (in which case silence becomes inscrutable), as opposed to clamming up in recollection of guilt. But life is ever imperfect, and so I understand why Salinas walks that line, and it seems applicable in Ward as well.
In summary, I consider myself a fan of the Privilege and a believer in Griffin and Doyle. But I think Ward wrongly decided.
(Ward was plain error review, but I’m not focusing on that as there was preexisting Tenth Circuit precedent in a case called Canterbury. I’m interested in what is ideal and what the Supreme Court has said, not on the particulars of Tenth Circuit jurisprudence; on my read, Canterbury adds nothing helpful of substance.)
If you see things differently, I’d love to hear why.
Leave a Reply