In United States v. Frazier, No. 04-1005 (8th Cir., May 31, 2005), a unanimous three-judge panel held that that the prosecution may use a defendant's post-arrest, pre-Miranda silence as part of its case-in-chief.
The following is an example of the line of questioning at issue:
Q [Prosecutor]: Did you talk with Mr. Frazier . . . or tell [him] why [he was] being arrested?
A [Officer]: I just told [him] that [he was] under arrest for suspicion of narcotics.
Q: What was Mr. Frazier's reaction when you . . . placed him into custody?
A: There really wasn't a reaction.
Q: Was he angry?
A: No, sir.
Q: Was he surprised?
A: No, sir.
Q: Did he become combative?
A: No, sir.
Q: Did he say anything to you?
A: No, sir.
Q: Did he do anything when you put the handcuffs on him?
A: No, sir.At closing, the government noted Frazier's conduct after arrest as one factor that could be indicative of guilt. "If a person has a friend who betrays them, what's the innocent person going to do when they discover they're going to jail. Everybody else is back in Chicago. Are they going to become combative, angry, emotional, demanding? There was none of them from . . . Mr. Frazier."
I originally blogged about this same case, which was originally issued on Jan. 7th, here.
UPDATE: Of course, if the defendant had become, "combative, angry, emotional, demanding" he would have been charged with resisting arrest.
