Should American courts heed the 'English warnings'?

"You have the right to remain silent. Anything you do say may be given in evidence. However, it may harm your defense if you do not mention, when questioned, something which you later rely on in court. You have a right to an attorney, and there is a duty solicitor available for you to consult at the police station."

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These are, roughly, the "English warnings." They must be given to every person arrested in England and Wales, although the warnings about counsel don't have to be given until the suspect arrives at the police station. Notice that they differ in two significant respects from the American Miranda warnings.

First, the "just pretend" right to counsel in America--where even if the suspect asks for a lawyer he or she doesn't necessarily get one, although interrogation must cease--is a real right in England. All police stations must have lawyers present or on call, and the suspect may not be questioned without consulting an attorney unless he or she signs a written waiver. Also, every police station must prominently display posters informing people that counsel is available and that the right to counsel includes the right to have a lawyer present during the interrogation. (1)

The second difference is the warning that "it may harm your defense if you don't mention, when questioned, something which you later rely on in court." In other words, if you don't mention an alibi, cite self-defense, or say something else that you would naturally be expected to tell the police and then raise it as a defense in court, your earlier silence during the interrogation can be used against you.

This seems flatly inconsistent with the American rule set down in Doyle v. Ohio, which prohibits any use of a suspect's post-Miranda silence. (2) In Doyle, the defendants were charged with selling marijuana to a narcotics informant. At trial, the defendants claimed that they had been framed by the informant, who brought marijuana to the scene (with police officers watching) and, when the defendants balked at buying 10 pounds of it, threw $1,320 into Jefferson Doyle's car and took back the package of marijuana. This contradicted the government's claim that Doyle had brought the marijuana and had been paid for it. The defendants were then cross-examined about their failure to tell their story to the police at the time they were arrested.

The Supreme Court held,

   Silence in the wake of [Miranda] warnings
   may be nothing more than the arrestee's
   exercise of these Miranda rights. Thus,
   every post-arrest silence is insolubly ambiguous
   because of what the state is required
   to advise the person arrested ....
   [W]hile it is true that the Miranda warnings
   contain no express assurance that silence
   will carry no penalty, such assurance
   is implicit to any person who receives
   the warnings. In such circumstances
   it would be fundamentally
   unfair and a deprivation of due
   process to allow the arrested person's
   silence to be used to impeach
   an explanation subsequently offered
   at trial. (3)

   [T] his is a case in which the defendants'
   silence at the time of their arrest
   was graphically inconsistent
   with their trial testimony that they
   were the unwitting victims of a
   "frame up" in which the police did
   not participate. If the defendants
   had been framed, their failure to
   mention that fact at the time of
   their arrest is almost inexplicable;
   for that reason under accepted
   rules of evidence, their silence is
   tantamount to a prior inconsistent
   statement, and admissible for purposes
   of impeachment. (4)

The Court's decision rested entirely on a due process rationale and was not grounded on the Fifth Amendment right to silence. As Doyle holds, it does seem unfair to advise a suspect of the right to silence and then pull the rug out from under him or her for using it.

Stevens's protestation that Doyle had failed at his trial to explain that his silence was based on his Fifth Amendment rights misses the point, because by then that silence had already been brought to the jury's attention. But Stevens is certainly right that, as a matter of evidence law, failure to mention this defense would be tantamount to a prior inconsistent statement.

The sounds of silence

Doyle is based on the "implicit assurance" of the Miranda warnings that silence will not be used against the suspect. Nothing in Doyle, or in the due process notion of fairness on which it is based, suggests that if, as in England, the suspect is explicitly warned that silence may be used against him or her under certain circumstances, use of that silence would be inappropriate. Nor does Miranda, or any of its successor cases, suggest that such an additional admonition would somehow violate the Fifth Amendment. (5)

It does seem unduly protective of Fifth Amendment rights to allow criminal defendants to raise claims of alibi, self-defense, or other defenses that they would naturally have been expected to tell the police of but didn't, when the warnings could be easily modified to avoid the unfairness cited by Doyle. Nor could such a warning be reasonably deemed "compulsory self-incrimination"--it is far less compelling than many of the interrogation tactics that police are currently allowed to employ.

Post-Miranda Supreme Court decisions suggest that such a change would be permissible. Fletcher v. Weir held that post-arrest silence, before Miranda warnings, could be used against the accused at trial. (6) And in Jenkins v. Anderson, the Court held that pre-arrest (and therefore pre-warning) silence could be used against a defendant at trial: "[C]ommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances where that fact naturally would have been asserted." (7)

I disagreed with the Court's ruling in Jenkins, arguing that "anyone who believes that volunteering information to the police is 'natural' for a resident of Detroit's inner city has an unusually optimistic view of human nature." Dennis Jenkins's silence was as "insolubly ambiguous" as Jefferson Doyle's. (8)

Both Jenkins and Fletcher involve a silence that is much more ambiguous than a suspect's silence would be after receiving the English warnings. Yet in both cases, the Court upheld the incriminatory use of that silence at trial.

Most telling, in South Dakota v. Neville, the Court held that the Doyle principle was not offended by the use of a drunk-driving suspect's refusal to take a blood-alcohol test against him in court:

   The officers specifically warned [the] respondent that failure to
   take the test could lead to loss of driving privileges for one
   year. It is true the officers did not inform [the] respondent that
   a further consequence was that evidence of refusal could be used
   against him in court, but we think it unrealistic to say that the
   warnings given here implicitly assure a suspect that no
   consequences other than those mentioned will occur. Importantly,
   the warning that he could lose his driver's license made it clear
   that refusing the test was not a "safe harbor," free of adverse
   consequences. (9)

Consequently, Neville allowed police officers to avoid the Doyle problem by the simple expedient of warning a suspect that noncooperation may be used against him or her in some way--without specifically warning the suspect that it could be used in court, as I propose. Neville certainly laid the groundwork for American police officers to adopt the English warnings and for silence to be used against a defendant in court when evidence law deems it inconsistent with his or her defense.

But when a suspect asserts his or her right to counsel, rather than the right to remain silent, the matter becomes more complicated. Even someone who acted in self-defense or has an alibi might well deem it prudent to discuss matters with a lawyer before making any admissions to the police, despite the additional warning. For this reason, silence based on an expressed desire to speak with counsel is, in my view, as "insolubly ambiguous" as the silence in Doyle.

As the Court made clear in Edwards v. Arizona, assertion of the right to counsel is a suspect's cry for help, whereas asserting the right to remain silent shows the suspect's awareness that he or she is in control of the situation. (10) Consequently, assertion of the right to counsel is not inconsistent with the existence of a defense, like alibi or self-defense, and is not a suitable basis for impeachment.

Asserting dual rights

What about silence after a consultation with counsel? This difficult question has caused much trouble in the English courts. The European Court of Human Rights has approved of the English warnings and the trial court's instructing the jury that it may use post-warning silence against the defendant.

But in Beckles v. United Kingdom, the European Court struck down the con viction of a defendant who claimed he remained silent on counsel's advice. (11) The court found that the trial judge's instructions to the jury did not "allow the jury to consider fully whether the appellant's reason for his silence was a genuine one or whether, on the contrary, his silence was consistent only with guilt and/or his reliance on legal advice to stay silent [was] merely a convenient self-serving excuse." (12)

On remand, the English Court of Appeal, while allowing the appeal and ordering a retrial, held that "in a case where a solicitor's advice was relied on by the appellant, the ultimate question for the jury ... remains whether the facts relied on at the trial were facts which the appellant could reasonably have been expected to mention in an interview." (13) The court stressed that defendants must not be allowed to "drive a coach and horses through section 34 [the statute establishing the warning] and by so doing avoid the statutory objective" of allowing defendants to be impeached by silence at interrogation. (14) As a result, even when a lawyer advises the suspect to remain silent, that silence may still be used against the suspect--even though the circumstances under which this may happen are unclear. (15)

Given that the U.S. Supreme Court has exalted the assertion of the right to counsel over the assertion of the right to silence, (16) and since silence in light of an assertion of the right to counsel or consultation with counsel strikes me as particularly ambiguous--and therefore a silence that should not be held against the defendant--I would part company from the English on this point. I would not allow impeachment under such circumstances. Drawing the line at this point would avoid the problems that the English courts have faced.

This proposal would produce a dramatic change in American criminal procedure by adding a fifth warning--that silence may be used against you if it is inconsistent with a defense raised at trial--but it is not clear that it would have a significant impact on trials. Most defendants don't rely on their right to silence in the first place, and many don't testify. But this proposal would discourage defendants from bringing up spurious defenses at trial that they didn't tell the police about, but have subsequently had an opportunity to arrange witnesses to support.

If more states, or the Supreme Court, would require that interrogations be videotaped before they could be used at trial, this practice would offset any perceived unfairness to defendants occasioned by this proposal. Videotaping would help to ensure that confessions had not been coerced by improper police tactics and give context to a defendant's assertion of silence to aid the trial judge in determining its relevance.

Notes

(1.) David Feldman, England and Wales, in Criminal Procedure: A Worldwide Study 149, 167-68 (Craig M. Bradley ed., 2d ed., Carolina Academic Press 2007).

(2.) 426 U.S. 610 (1976).

(3.) Id. at 617-18.

(4.) Id. at 621-22 (Stevens, J., dissenting).

(5.) But see Griffin v. California, 380 U.S. 609 (1965) (holding that adverse comment on defendant's silence at trial is unfair). I have agreed with this holding on the ground that such silence is, in fact, insolubly ambiguous. Craig Bradley, Griffin v. California: Still Viable after All These Years, 79 Mich. L. Rev. 1290 (1981). 6. 455 U.S. 603, 607 (1982).

(7.) 447 U.S. 231, 239 (1980) (citing 3A J. Wigmore, Evidence [section] 1042 at 1056 (Chadbourn rev. 1970)).

(8.) Craig Bradley, Havens, Jenkins, and Salvucci and the Defendant's "Right" to Testify, 18 Am. Crim. L. Rev. 419, 434 (1981).

(9.) 459 U.S. 553, 566 (1983).

(10.) 451 U.S. 477, 485 (1981).

(11.) [2003] 36 EHRR 13.

(12.) Id. For a summary of Beckles, see 2005 Crim. L. Rev. 561.

(13.) Id. (emphasis in original).

(14.) Id.

(15.) See e.g. R. v. Hoare and Pierce, 2005 Crim. L. Rev. 56, reaching the opposite result under circumstances similar to those in Beckles.

(16.) Compare Edwards, 451 U.S. 477, with Michigan v. Mosley, 423 U.S. 96 (1975).

CRAIG M. BRADLEY is the Robert Lucas Professor of Law at Indiana University in Bloomington. He can be reached at [e-mail].