The Ninth Circuit's holding in United States v.Oplinger is significant for several reasons: (1) the decision deadlocked the federal circuits (i.e., three to three) with respect to the issue of pre-arrest silence as substantive evidence of guilt; (2) the court extensively analyzes the unique contextual surroundings of a defendant's pre-arrest silence; and (3) the court's decision pushes the divergent circuit opinions surrounding pre-arrest silence as substantive evidence to the point of "critical mass." In other words, the Oplinger opinion undoubtedly makes this issue overly ripe for Supreme Court review. Part II reviews the history of the Fifth Amendment privilege against self-incrimination, how "silence" may be used by the prosecution, and the current split in the circuits regarding pre-arrest silence. Part III.A of this Note argues that there is neither a complete prohibition nor absolute permission to use pre-arrest silence as substantive evidence. Part III.B argues that the minority circuits have erroneously interpreted the Supreme Court's ruling in Jenkins v. Georgia and, as such, incorrectly concluded that pre-arrest silence should not be allowed as substantive evidence. Finally, Part III.C maintains that Oplinger was correctly decided because it properly applied the Fifth Amendment based upon the context of the coercion faced by the defendant.
Craig W. Strong,
A Contextual Framework for the Admissibility of a Criminal Defendant's Pre-Arrest Silence: United States v. Oplinger, 150 F.3d 1061 (9th Cir. 1998),
79 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol79/iss2/5