DWI Law - Minnesota Says Pre-Arrest Silence Can Be Used at Trial

In Minnesota v. Seebeck, --- N.W.2d ----, 2011 WL 6306620 (Minn.App.) a sheriff's deputy found Shawn Seebeck at two o'clock in the morning, alone, drunk, and wandering away from an unoccupied pickup truck on Highway 23. Seebeck agreed with the deputy that he should not have been driving because of his license revocation, suggested that he was not too impaired to drive, performed field sobriety tests, was arrested for drunk driving, and then submitted to a blood test without ever suggesting that he actually had not been driving. At the impaired-driving trial, the state emphasized Seebeck's omission to the jury, which convicted him. The appellate court was asked to decide whether the federal and state constitutions prohibited the state from emphasizing Seebeck's silence to bolster its trial position that, by saying nothing, Seebeck tacitly verified the deputy's understanding that he had been driving. Additionally, the court was also asked to determine whether the prosecutor plainly erred by misstating the law of physical control of a vehicle under the impaired-driving law. 

With regards to pre-arrest silence, the court wrote:

"Seebeck's constitutional challenge to the use of his prearrest silence fails without the need for much discussion under the supreme court's recent decision in State v. Borg, No. A09–0243, ___ N.W.2d ____, 2011 WL 5560172 (Minn. Sept. 21, 2011). The Borg court reasoned that a defendant's silence that “is not in response to a choice compelled by the government to speak or remain silent” is not subject to Fifth Amendment protection. Id. at *7. After it extensively quoted Justice Stevens's concurring opinion in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124 (1980) (Stevens, J., concurring), the court expressly adopted his view that the decision whether to admit evidence of prearrest silence (as opposed to postarrest silence) raises no constitutional concerns, posing instead only “a routine evidentiary question.” Id. at *6–7 (quotations omitted). A prosecutor's comment about a defendant's prearrest silence therefore does not offend the defendant's constitutional right to silence. Id. at *7.

Regarding the use of the post-arrest silence, the court stated:

"Seebeck's constitutional challenge concerning the prosecutor's use of his postarrest silence fails for a different reason. The prosecutor pointed out during her opening statement to the jury and also elicited through Deputy Hasch's direct-examination testimony that, neither in responding to being told he was under arrest for drunk driving nor in responding to being advised of his blood-testing duty under the implied-consent law related to drunk driving, did Seebeck ever correct the deputy's assumption that he had been driving. This circumstance is different from those cases in which appellate courts have found no constitutional violation when the prosecutor used the defendant's postarrest silence to impeach the credibility of a defendant's trial testimony. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 (1982) (holding that absent a Miranda warning, due process is not violated when a prosecutor relies on a defendant's postarrest silence to impeach his trial testimony); State v. Dobbins, 725 N.W.2d 492, 510 (Minn.2006) (recognizing that the Constitution does not bar the use of postarrest silence to impeach the credibility of a defendant who was not given a Miranda warning). In this case, by contrast, the state did not limit its use of the evidence of the defendant's postarrest silence to impeaching his trial testimony; it instead relied broadly on that evidence in its case-in-chief as substantive proof of an element of the offense charged. Neither the federal Supreme Court nor our state supreme court has decided the constitutional implication of a prosecutor's use of a defendant's postarrest, pre- Miranda silence in the prosecutor's case-in-chief rather than solely for impeachment. This court has similarly never answered the question.

"Several federal appellate courts have addressed the question, but with contradictory results. Three federal circuit courts (the Fourth, Eighth, and Eleventh Circuits) have deemed evidence of postarrest, pre- Miranda silence to be constitutionally admissible for use in the state's case-in-chief, while three others (the Seventh, Ninth, and D.C. Circuits) have deemed this use unconstitutional. Compare U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); U.S. v. Frazier, 408 F.3d 1102, 1109–11 (8th Cir.2005); U.S. v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir.1991), with U.S. v. Hernandez, 948 F.2d 316, 322–24 (7th Cir.1991); U.S. v. Velarde–Gomez, 269 F.3d 1023, 1028–30, 1036 (9th Cir.2001); U.S. v. Moore, 104 F.3d 377, 384–89 (D.C.Cir.1997). Of those courts, the two that most thoroughly addressed the constitutional concerns came to different conclusions. The D.C. Circuit in Moore and the Eighth Circuit in Frazier carefully discussed the compelled-statement concerns of the Fifth Amendment as well as due process concerns indirectly related to Miranda. See Moore, 104 F.3d at 385–87; Frazier, 408 F.3d at 1109–11. The Moore court surveyed the Supreme Court cases and interpreted their rationale to conclude that the prosecution can never constitutionally use a defendant's silence against him as evidence of guilt. 104 F.3d at 389. In contrast, the Frazier court rejected a bright-line prohibition and held that the silence may be applied by the state in its case-in-chief if the silence was not the result of compulsion by law enforcement. 408 F.3d at 1110–11."

Ultimately though, the court chose not to decide which approach to follow, holding that, even if the post-arrest silence was inadmissible, the error was harmless based upon the evidence in the case:

"First, the argument mistakenly assumes that Seebeck's postarrest silence was the only evidence that he was driving. Before Seebeck took the stand, the jury had sufficient evidence other than his silence from which it could have found that he was driving (specifically, his walking alone from the pickup truck in the middle of the night, his acknowledging that he should not have been driving while revoked and saying that he thought he was physically safe to drive, and his prearrest silence). And second, the argument mistakenly assumes that Seebeck's incriminating testimony resulted from his attempt to rebut the evidence inferred from his silence. The incriminating portion of Seebeck's direct testimony about the details of his contact with the vehicle's controls was wholly unnecessary to rebut the inculpatory inference from his silence. So to the extent that Seebeck believed that he needed to testify to rebut the assertion that he was actually driving, that need existed irrespective of any allegedly unconstitutionally admitted evidence of his silence; and the incriminating portion of Seebeck's voluntary testimony was unnecessary to rebut the only incriminating inference that could have been drawn from the challenged evidence. Seebeck's arguments do not overcome our impression beyond a reasonable doubt that the allegedly unconstitutional admission of evidence did not influence the jury in reaching the guilty verdict.

The court concluded that, because his right to remain silent does not prevent the state from using evidence of his prearrest silence and use of his postarrest silence was at most harmless error, and because the prosecutor did not misstate the law of physical control, we affirm.

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