Post-Arrest Silence and the Fifth Amendment

Recently, the Third Circuit in United States v. Edwards, -- F.3d --, 2015 WL 4069280 (3d Cir. 2015), ruled that the Government’s use of post-Miranda silence during a trial to imply guilt violates the Fifth Amendment and was not harmless error.

Jace Edwards was convicted of attempted possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Much of the Government’s evidence against Edwards focused on his possession of a drug-filled suitcase at a motel. The Government arranged a “controlled delivery” of cocaine with the help of a co-conspirator who was arrested a day earlier. The co-conspirator told the Government that a “Mr. Dred” would pick up the suitcase containing cocaine (which, for the purposes of the sting was replaced with an imitation substance). Edwards arrived at the hotel, and after telling the co-operator that “Dred” sent him, he received the suitcase but did not open it.

Shortly after taking possession of the suitcase, Edwards was arrested. After issuing him a Miranda warning, the Government showed him what was inside the suitcase. Edwards chose to remain silent. At the trial, the Government repeatedly encouraged the jury to draw inferences from his silence. The District Court judge overruled Edwards’ contemporaneous objections to the prosecutor’s comments.

On appeal, the Government conceded that the references to Edwards’s silence violated the Fifth Amendment. But it claimed that under Doyle v. Ohio, 426 U.S. 610 (1970), it was harmless error. The Third Circuit disagreed. The Court noted that under Doyle, such errors are harmless if the Government “prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Because the Government’s case depended largely on the events in at the motel, “the credibility of Edwards’s competing story was crucial to the outcome of the case.” The Government’s argument—that if Edwards were innocent he would not have remained silent when shown the cocaine—undermined this credibility. Moreover the District Court judge’s “belated and ineffective curative instruction” to the jury was too little, too late and the Court remanded the case for a new trial.

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