It is commonly understood that an arrested person has a right to remain silent and that the government may not use his or her silence to prove guilt at trial. Three Circuit Courts of Appeal, however, reject this understanding. They allow the prosecution to use an arrested person's pre-Miranda silence as direct evidence of guilt. This article argues that those Circuits are wrong. The article, first, demonstrates the historical antiquity of the Common Law principle that a detained person has the right to stand mute. Though the right was limited by statutory incursion and in tension, at times, with the evidentiary principle of "tacit admissions" an arrested person's right to stand mute has never been so attenuated that a defendant's mere silence upon arrest can give rise to an inference of guilt. Two of the Circuits that permit the use of post-arrest pre-Miranda silence to prove guilt neglect the distinction between the impeachment use of silence, which the Supreme Court has sanctioned, and the substantive use of silence. A third Circuit has confused the giving of Miranda warnings with the inception of the right to remain silent. Four other Circuits bar the prosecution from using post-arrest pre-Miranda silence to prove guilt. These courts correctly perceive that the right against self-incrimination protects a person at least from the moment he or she is detained.
Frank R. Herrmann S.J. and Brownlow M. Speer. "Standing Mute at Arrest as Evidence of Guilt: The 'Right to Silence' Under Attack." American Journal of Criminal Law 35, (2008): 1-22.