demeanor evidence does not demean anything: how exposure to ...

2013] DEMEANOR EVIDENCE DOES NOT DEMEAN ANYTHING 485was the trigger for the attachment of the Fifth Amendment because it fearedthat “[a]ny other holding would create an incentive for arresting officers todelay interrogation in order to create an intervening ‘silence’ that could thenbe used against the defendant.” 30 Therefore, someone who is arrested hasthe privilege against self-incrimination pursuant to the Fifth Amendmentand Miranda.II. THE CIRCUIT SPLIT AND DIVERGENCE OF OPINIONS AMONG THEFEDERAL CIRCUIT COURTS OF APPEALS OF POST-ARREST, PRE-MIRANDA DEMEANOR EVIDENCEThe Supreme Court of the United States has addressed the question ofpre-arrest, pre-Miranda silence and demeanor evidence for impeachmentpurposes, 31 post-arrest, pre-Miranda silence and demeanor evidence forimpeachment purposes, 32 and post-arrest, post-Miranda silence assubstantive evidence of guilt. 33 The Supreme Court, however, has yet toaddress the issue of PAPM demeanor evidence as substantive evidence ofguilt. The Circuit Courts, on the other hand, have addressed the issue ofPAPM demeanor evidence, but the Courts are split on the admissibility ofsuch evidence. 34 Referring back to our hypothetical, Mr. Doe’s PAPMdemeanor evidence can be used against him as substantive evidence of guiltin one jurisdiction, while it may be inadmissible in another. 35 Therefore, itis imperative to have a uniform rule on the admissibility of PAPMdemeanor evidence. 36The split in the circuits’ decisions is “based primarily on adisagreement over whether a Miranda warning must trigger the right tosilence, and whether there is a constitutional distinction between the use ofsilence and demeanor evidence for impeachment and its use as evidence of30. Id.31. Jenkins v. Anderson, 447 U.S. 231, 240-41 (1980) (holding that evidence of silence prearrest,pre-Miranda may be used to impeach a criminal defendant).32. Fletcher v. Weir, 455 U.S. 603, 607 (1982) (holding that it does not violate due processof law for a State to permit cross-examination as to post-arrest silence when a defendant choosesto take the stand).33. Doyle v. Ohio, 426 U.S. 610, 617 (1976) (holding that evidence of silence post-arrest,post-Miranda is “insolubly ambiguous” because silence in the wake of Miranda warnings may benothing more than the arrestee’s exercise of these Miranda rights).34. See infra Part II.A, B.35. See id.36. See supra pp. 481-82.

486 SOUTHWESTERN LAW REVIEW [Vol. 42guilt.” 37 Moving forward, there should be a uniform rule regarding theadmissibility of PAPM demeanor evidence despite the fact that suchevidence may be challenged by the Federal Rule of Evidence 403 as beingunduly prejudicial; 38 since this should not be the desired solution. Becausethere are different admissibility standards by Circuits, 39 it is crucial thatthere be a uniform system for admissibility. Having a criminal defendantact in the same manner in two different Circuits, i.e. the Ninth Circuitversus the Fourth Circuit, will lend different results on the admissibility ofhis or her PAPM demeanor evidence. 40 Thus, having a uniform rule onadmissibility will end any confusion on the admissibility of PAPMdemeanor evidence. As such, admitting PAPM evidence will violate theFifth Amendment because the Fifth Amendment attaches once a criminaldefendant is arrested, 41 not upon receiving the Miranda warnings, as theFourth, Fifth, Eighth, and Eleventh Circuits have held. 42 Therefore, PAPMdemeanor evidence should be inadmissible against criminal defendants assubstantive evidence of guilt.A. Circuits that Hold Demeanor Evidence Admissible as SubstantiveEvidence of Guilt Post-Arrest, Pre-MirandaThe Fourth, 43 Fifth, 44 Eighth, 45 and Eleventh Circuits 46 have all heldthat PAPM demeanor evidence and silence evidence is admissible and may37. Jan Martin Rybnicek, Damned If You Do, Damned If You Don’t?: The Absence of AConstitutional Protection Prohibiting the Admission of Post-Arrest, Pre-Miranda Silence, 19 GEO.MASON U. C.R. L.J. 405, 424 (2009).38. See FED. R. EVID. 403.39. See infra Parts II.A, B.40. Compare United States v. Velarde-Gomez, 269 F.3d 1023, 1028 (9th Cir. 2001) (holdingthat admission of “evidence of a lack of physical or emotional reaction” violated a defendant’sFifth Amendment privilege against self-incrimination because it “was tantamount to evidence ofsilence”), with Folston v. Allsbrook, 691 F.2d 184, 187 (4th Cir. 1982) (holding that a defendant’ssilence was an implied admission which rendered it admissible against him).41. See supra note 21.42. See infra Part II.A.43. Folston, 691 F.2d at 187 (holding that a defendant’s silence was an implied admissionwhich rendered it admissible against him).44. United States v. Salinas, 480 F.3d 750, 757 (5th Cir. 2007) (holding that theprosecution’s alleged comments on defendant’s post-arrest silence at three points during its casein-chiefdid not violate this non-testifying defendant’s due process rights, given that defendantwas never given Miranda warnings); United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995)(holding that pre-Miranda silence can be highly probative precisely because it implicates no suchassurances and a reasonable juror would have thought the defendant would try to explain himselfif he were trying to assist the police in catching drug dealers).

2013] DEMEANOR EVIDENCE DOES NOT DEMEAN ANYTHING 487be used as substantive evidence of guilt against a criminal defendant.Referring to the hypothetical, 47 if after Mr. Doe’s arrest at the border, heremained silent, shrugged a shoulder, blinked or did not blink, theGovernment may introduce that demeanor evidence against him assubstantive evidence of his guilt. The aforementioned courts would treatMr. Doe’s demeanor evidence as highly probative of his guilt, despite thefact that he was not given his Miranda warnings. 48 Pursuant to the Fourth,Fifth, Eighth, and Eleventh Circuit Courts, the timing of the Mirandawarnings is crucial because the Fifth Amendment attaches upon the givingof the Miranda warnings. 49The Circuit Courts’ rationale behind allowing and admitting demeanorevidence and evidence of silence as substantive evidence of guilt is that thecourts believe that a reasonable person under like circumstances may wishto speak to the police when they are being accused of a crime they did notcommit, 50 and neither the Constitution nor Miranda bar pre-Mirandaadmission of evidence for a Government case-in-chief. 51 Further, the Courtshave held that the admission of non-responsive demeanor evidence can beharmless and probative. 52 Thus, because of its alleged high probative value,harmlessness to the criminal defendant, and Fifth Amendment attachmentupon the giving of Miranda warnings, the aforementioned circuits haveheld that PAPM demeanor evidence and evidence of silence is admissibleas substantive evidence of guilt.In United States v. Musquiz, 53 the Fifth Circuit stated that “pre-Miranda silence can be highly probative precisely because it implicates nosuch assurances.” 54 The Fifth Circuit stated that a reasonable juror would45. United States v. Frazier, 408 F.3d 1102, 1111 (8th Cir. 2005) (holding that the use ofFrazier’s silence in the government’s case-in-chief as evidence of guilt did not violate his FifthAmendment rights).46. United States v. Rivera, 944 F.2d 1563, 1569 (11th Cir. 1991) (holding that theGovernment’s comment on defendant’s nonresponsive demeanor would be harmless beyond areasonable doubt and admissible).47. See supra pp. 481-82.48. See supra notes 43-46.49. See infra Part II.A.50. See Vanessa Willis, The Government’s Use of Pre-Miranda Silence in Its Case-in-Chief:An Alternative Approach Under Schmerber v. California, 77 U. CIN. L. REV. 741, 754 (2008)(“[S]ilence may be binding against a party as an adoptive admission . . . [because] a reasonableperson ‘would, under the circumstances, protest the statement made in his presence, if untrue.’”);David S. Romantz, “You Have the Right to Remain Silent”: A Case for the Use of Silence AsSubstantive Proof of the Criminal Defendant’s Guilt, 38 IND. L. REV. 1, 39-42 (2005).51. See Romantz, supra note 50, at 47-53.52. See, e.g., United States v. Rivera, 944 F.2d 1563, 1569 (11th Cir. 1991).53. 45 F.3d 927 (5th Cir. 1995).54. Id. at 930.

488 SOUTHWESTERN LAW REVIEW [Vol. 42have believed that Musquiz would have explained himself when confrontedby the police. 55 Further, the Second Circuit has held that “‘[s]ilence is notevidence of an admission, unless there are circumstances which render itmore reasonably probable that a man would answer the charge made againsthim than that he would not.’” 56Additionally, in Folston v. Allsbrook, 57 the Fourth Circuit addressed theissue of the probative value of PAPM silence and demeanor evidence. InAllsbrook, the Fourth Circuit held that “Folston’s silence under thecircumstances clearly is an implied admission [of guilt] which renders thestatement admissible against him.” 58 Folston was convicted of first-degreemurder 59 and at trial evidence was introduced against Folston that when acellmate asked Folston “why did he shoot the man,” Folston gave noreply. 60 The Fourth Circuit held that Folston did not have a strong enoughargument that “his silence was so ambiguous and so without probativevalue as to be inadmissible.” 61 Thus, the court held that demeanor evidenceand evidence of silence is arguably indicative of guilt and can be highlyprobative.Moreover, courts have held demeanor evidence and evidence of silenceto be admissible as substantive evidence of guilt because its introductioncould be harmless to the criminal defendant and would not warrant reversalof a conviction. 62 Further, in United States v. Rivera, 63 the Eleventh Circuitconcluded that the introduction of evidence of the defendant’s demeanorwas harmless error and that it did not warrant a reversal of her conviction. 64In Rivera, the court equated the defendant’s demeanor, when she was“‘fairly deadpan,’ expressionless, and without any visible signs of agitationor nervousness about being singled out for questioning,” to evidence of55. Id. at 931.56. United States v. Flecha, 539 F.2d 874, 877 (2d Cir. 1976).57. 691 F.2d 184 (4th Cir. 1982).58. Id. at 187.59. Id. at 185.60. Id. at 187.61. Id.62. See, e.g., United States v. Rivera, 944 F.2d 1563, 1569 (11th Cir. 1991) (“Consideringthat the prosecutor’s comment on Vila’s post-Miranda silence was cumulative of otherpermissible evidence of her “deadpan,” expressionless demeanor, any potential error on the part ofthe government in this case was not so harmful as to require reversal of Vila’s conviction.”).63. 944 F.2d 1563 (11th Cir. 1991).64. See id. at 1569-70.

490 SOUTHWESTERN LAW REVIEW [Vol. 42Courts that allow the government to introduce demeanor evidence andsilence as substantive evidence of guilt have held this statement to meanthat the Fifth Amendment right against self-incrimination attaches onlywhen the Miranda warnings are given. 77 Therefore, since the protectionattaches after the Miranda warnings are given, PAPM evidence ofdemeanor and silence are not in violation of the Fifth Amendment.Reasoning that demeanor evidence and silence is probative, itsintroduction is harmless to the defendant, and the Fifth Amendmentarguably attaches upon the giving of the Miranda warnings, theaforementioned Circuit Courts have held such evidence admissible assubstantive evidence of guilt. 78 However, as discussed below, 79 theseCircuit Courts misapply Doyle v. Ohio, incorrectly conclude that Mirandatriggers the right to remain silent, and attribute too much weight andprobative value to PAPM evidence that is “insolubly ambiguous.” 80B. Circuits that Hold Post-Arrest, Pre-Miranda Demeanor EvidenceInadmissible as Substantive Evidence of GuiltThe Second, 81 Seventh, 82 Ninth, 83 and D.C. 84 Circuits have all held thatPAPM evidence of demeanor and silence is inadmissible as substantiveevidence of guilt and bar the prosecution from introducing such evidence in77. See Willis, supra note 50, at 745-46 (“Ultimately, the Doyle decision implies thatMiranda warnings are the trigger to a defendant’s right to remain silent.”).78. See supra notes 49, 52-71.79. See infra Part II.B.80. See Doyle, 426 U.S. at 617.81. United States v. Flecha, 539 F.2d 874, 877 (2d Cir. 1976) (holding that “‘[s]ilence is notevidence of admission’”).82. United States v. Hernandez, 948 F.2d 316, 324 (7th Cir. 1991) (“[H]ere, the prosecutordeliberately elicited a direct reference to the defendant’s silence upon initial confrontation withlaw enforcement officers.”); United States v. Ramos, 932 F.2d 611, 616 (7th Cir. 1991) (holdingthat “it is a violation of the fifth amendment privilege against self-incrimination to allow aprosecutor to use as evidence of guilt a defendant’s refusal to talk to the police.”).83. United States v. Velarde-Gomez, 269 F.3d 1023, 1028 (9th Cir. 2001) (holding that“because the government’s evidence of a lack of physical or emotional reaction was tantamount toevidence of silence, the district court erred in admitting it” and admission violated Velarde’s FifthAmendment privilege against self-incrimination); United States v. Whitehead, 200 F.3d 634, 639(9th Cir. 2000) (holding that admitting “evidence of Whitehead’s post-arrest, pre-Miranda silence,and . . . allow[ing] the government to comment on this silence in closing argument . . . plainlyinfringed upon Whitehead’s privilege against self-incrimination”); Guam v. Veloria, 136 F.3d648, 652 (9th Cir. 1998) (holding that the officer’s testimony regarding the post-arrest silencecannot be characterized as innocuous and should not have been admitted).84. United States v. Moore, 104 F.3d 377, 389 (D.C. Cir. 1997) (holding that “the law isplain that the prosecution cannot, consistent with the Constitution, use a defendant’s silenceagainst him as evidence of his guilt.”).

2013] DEMEANOR EVIDENCE DOES NOT DEMEAN ANYTHING 491its case-in-chief. The rationale behind holding PAPM demeanor evidenceand silence inadmissible as substantive evidence of guilt is that suchevidence is “insolubly ambiguous,” 85 “the right to remain silent, asprescribed by Fifth Amendment, does not need to be triggered by aMiranda warning to become effectual,” 86 and the notion that PAPMevidence of demeanor and silence is admissible at trial as evidence of guiltseems intuitively at odds with popular understanding of the privilegeagainst self-incrimination, undermining the Fifth Amendment. 87 Therefore,these Circuit Courts have held PAPM evidence of demeanor and silenceinadmissible in the prosecution’s case-in-chief.The Supreme Court of the United States in Doyle v. Ohio 88 held that“[s]ilence in the wake of these [Miranda] warnings may be nothing morethan the arrestee’s exercise of these Miranda rights. Thus, every post-arrestsilence is insolubly ambiguous because of what the State is required toadvise the person arrested.” 89 Although the Supreme Court refers to postarrest,post-Miranda silence and demeanor evidence, it is applied to PAPMdemeanor and silence evidence by the aforementioned Circuit Courts. 90Because such evidence is insolubly ambiguous, its probative value isextremely low and introduction would be unfairly prejudicial to thedefendant. 91 Further, in People of Territory of Guam v. Veloria, 92 the NinthCircuit held that testimony regarding evidence of post-arrest demeanorevidence and silence “cannot, in this context, be characterized asinnocuous.” 93 In Veloria, the government presented testimony of Veloria’sarresting officer who testified about Veloria’s post-arrest silence. 94 TheNinth Circuit held that this testimony was impermissible, prejudicial, andwas not “innocuous.” 95 Because PAPM evidence of silence and demeanorevidence is insolubly ambiguous, Circuit Courts have held it to beinadmissible as substantive evidence of guilt. 9685. See Doyle, 426 U.S. at 617.86. Rybnicek, supra note 37, at 426.87. See Marc Scott Hennes, Manipulating Miranda: United States v. Frazier and the Casein-ChiefUse of Post-Arrest, Pre-Miranda Silence, 92 CORNELL L. REV. 1013, 1035-36 (2007).88. 426 U.S. 610 (1976).89. Id. at 617 (emphasis added).90. See supra notes 81-84 and accompanying text.91. See, e.g., FED. R. EVID. 403.92. 136 F.3d 648 (9th Cir. 1998).93. Id. at 652.94. Id. at 650.95. Id. at 652-53.96. See supra notes 81-84 and accompanying text.

492 SOUTHWESTERN LAW REVIEW [Vol. 42Further, “[t]he right to remain silent derives from the Constitution andnot from the Miranda warnings themselves, regardless of whether thewarnings are given, absent waiver, comment on the defendant’s exercise ofhis right to silence violates the Fifth Amendment.” 97 Additionally, theDistrict of Columbia Circuit Court held that it “cannot be the case that acitizen’s protection against self-incrimination only attaches when officersrecite a certain litany of his rights.” 98 “The current majority view is that theFifth Amendment protects silence [and demeanor evidence] only after aformal arrest has been made.” 99 The Fifth Amendment privilege againstself-incrimination is thus not solely triggered by the Miranda warnings;rather, it is triggered by a formal arrest or custody. 100 Therefore,introduction of PAPM demeanor evidence and evidence of silence assubstantive evidence of guilt would be in violation of the Fifth Amendment.In United States v. Velarde-Gomez, 101 the Ninth Circuit concluded thatthere is no meaningful distinction between demeanor evidence and evidenceof silence and the government’s introduction of such evidence in its case-inchiefviolated the defendant’s Fifth Amendment rights. 102 In Velarde-Gomez, Customs officials searched Velarde’s vehicle for drugs and theyfound sixty-three pounds of Marijuana. 103 In response to being informedthat Marijuana was found in his vehicle, “Velarde did not speak orphysically respond.” 104 Seeking to exclude the evidence of his demeanorupon arrest from trial, the district court held that the government couldintroduce all of the demeanor evidence into trial. 105 At trial, the Governmentintroduced evidence that Velarde was “‘totally relaxed’” and that he“‘showed no emotion’” 106 as substantive evidence of Velarde’s guilt. 107 TheNinth Circuit, however, concluded that “because the government’s evidenceof a lack of physical or emotional reaction was tantamount to evidence ofsilence, the district court erred in admitting it. The admission of thisevidence violated Velarde’s Fifth Amendment privilege against selfincrimination.”108 Since it is established that “once the government places97. United States v. Velarde-Gomez, 269 F.3d 1023, 1029 (9th Cir. 2001).98. United States v. Moore, 104 F.3d 377, 386 (D.C. Cir. 1997).99. Willis, supra note 50, at 748.100. See supra Part I.A.101. 269 F.3d 1023 (9th Cir. 2001).102. See id. at 1028.103. Id. at 1026.104. Id.105. Id. at 1027.106. Id. at 1028.107. Id. at 1027.108. Id. at 1028.

2013] DEMEANOR EVIDENCE DOES NOT DEMEAN ANYTHING 493an individual in custody, that individual has a right to remain silent in theface of government questioning, regardless of whether the Mirandawarnings are given[,]” 109 the Miranda warnings do not trigger the FifthAmendment; rather, an arrest or custody triggers the Fifth Amendment rightagainst self-incrimination. 110Additionally, “[t]he notion that post-arrest, pre-Miranda silence [anddemeanor evidence] is admissible at trial as evidence of guilt seemsintuitively at odds with popular understanding of the [Fifth Amendment]right against self-incrimination.” 111 Moreover, in United States v. Moore, 112the D.C. Circuit held that the “law is plain that the prosecution cannot,consistent with the Constitution, use a defendant’s silence against him asevidence of his guilt.” 113 Also, in United States v. Whitehead, 114 the NinthCircuit held that “‘silence in the face of arrest’ without reference toMiranda warnings could not be used as substantive evidence of guilt,because that would ‘act [] as an impermissible penalty on the exercise of theright to remain silent.” 115 Because introduction of PAPM demeanorevidence and evidence of silence contradicts the Constitution, specificallythe Fifth Amendment, the aforementioned Circuit Courts have held thatsuch evidence is inadmissible.Since PAPM evidence of demeanor and silence is “insolubly vague” 116because the Fifth Amendment attaches upon arrest, not when Mirandawarnings are given, 117 its admissibility is at odds with the commonunderstanding of the Fifth Amendment, 118 and the introduction of suchevidence should be inadmissible. Thus, the Government should not be ableto introduce PAPM evidence of demeanor and silence as substantiveevidence of guilt against a criminal defendant.109. Id. at 1029.110. See supra Part I.A.111. Rybnicek, supra note 37, at 440.112. 104 F.3d 377 (D.C. Cir. 1997).113. Id. at 389.114. 200 F.3d 634 (9th Cir. 2000).115. Id. at 638 (alterations in original) (quoting Douglas v. Cupp, 578 F.2d 266, 267 (9th Cir.1978)).116. Doyle v. Ohio, 426 U.S. 610, 617 (1976).117. See supra Part I.A.118. Rybnicek, supra note 37, at 440.

494 SOUTHWESTERN LAW REVIEW [Vol. 42III. BECAUSE OF AMERICANS’ EXPOSURE TO THE CRIMINAL JUSTICESYSTEM THROUGH THE MEDIA, AMERICANS INHERENTLY KNOW ANDUNDERSTAND THEIR MIRANDA RIGHT TO REMAIN SILENTIn Media and Criminal Justice: The CSI Effect, 119 Dennis Stevenspresents an in-depth analysis of the effect that the popular media has had onsociety and society’s understanding of the criminal justice system throughdata from 444 prosecutors. 120 The book focuses on three assumptions, thefirst of which is important to this article, that the “CSI Effect” has led toenlightened awareness. 121A. The CSI Effect and Its Implications Towards Perception of theCriminal Justice SystemAlthough the CSI Effect speaks of the negative consequences 122 of themedia portrayal of the criminal justice system in the United States, 123 theCSI Effect also describes how the mass media exposure 124 has led to highercompetency of criminal defendants. 125 Stevens furthers this argument bydiscussing television’s fascination with the criminal justice system,describing how criminal-enforcement programs have “virtually littered119. DENNIS J. STEVENS, MEDIA AND CRIMINAL JUSTICE: THE CSI EFFECT (2011).120. Id. at 2.121. See id. at 4-5 (“[T]he centerpiece of this work is to enhance reader awareness of theconsequences of the CSI Effect . . . .”).122. See id. at 11; see also id. at 12 (“The popular media plays an important role inunderstanding criminal justice in five ways: [(1)] It is a dramatic device for representing thesociopolitical and economic context in which most events take place and how this contextinfluences events. [(2)] The popular media is a comparator that sets the moral benchmark andprovides a mark of accuracy or authenticity (of the good guys and the bad guys). [(3)] The popularmedia exposes a perspective of criminal justice that is at odds with official descriptions andsupports assumptions of punishment and vigilante roles; at the other extreme, the media offersappropriate agendas of rehabilitation and prevention. [(4)] The popular media socially constructsand defines which real-world experiences and issues are significant and which experiences areirrelevant. [(5)] The popular media socially constructs and describes gender, race, and ethnicity,which includes the femininity of women and characteristics of an incompetent person and howthose roles characterize the behaviors of being an aggressor, victim, or being ineligible for justicesanctions, including trial.” (footnotes omitted)).123. See id. at 11 (“Studies show that the popular media shapes social views of the criminaljustice community . . . in several ways . . . .”).124. See id. at 35 (Showing that the “Top 10 Broadcast TV Rankings: June 1 – June 7, 2009”had Law & Order: SVU at 11,562,000 viewers; NCIS at 11,256,000 viewers; The Mentalist at10,875,000 viewers, and Law & Order at 8,866,000 viewers).125. See id. at 42 (“A pilot study of incompetent defendants who participated in a programthat used videotaped segments of the television crime drama Law & Order, among othertechniques, was employed to promote their competency to stand trial. The study showed markedimprovements in the areas of understanding, reasoning, and appreciation.”).

2013] DEMEANOR EVIDENCE DOES NOT DEMEAN ANYTHING 495television programming for the past four decades.” 126 Through the media’sportrayal of the criminal justice system, television shows accurately depictthe Miranda warning of the right to remain silent when a criminaldefendant is arrested. 127 As a result, Americans’ exposure to the criminaljustice system creates an inherent understanding of their Miranda right toremain silent. 128Additionally, Richard Rogers, Jill Rogstad, Nathan Gillard, EricDrogin, Hayley Blackwood, and Daniel Shuman, in “Everyone KnowsTheir Miranda Rights”: Implicit Assumptions and CountervailingEvidence, 129 conducted a survey 130 to address and analyze the notion thatAmericans know their Miranda rights 131 and the “survey found that mostpersons recognized that suspects have the right to remain silent(81%). . . .” 132 Although Rogers et al. argue that the “[r]esults revealed ahost of widely-held misconceptions, including a fundamentalmisunderstanding of the function of the ‘right to remain silent’ as a legalprotection[,]” 133 the evidence from their study 134 still shows that “[n]earlyall defendants (95.9%) accurately understand that their statements can beused as evidence against them.” 135 Rogers et. al believe that the assumption126. Id. at 36 (Television programs “include[] such diverse programs as The Avengers; TheMod Squad; Kojak; Baretta; Hawaii Five-O; The Rockford Files; Dragnet; Starsky and Hutch;Columbo; Hill Street Blues; Magnum, P.I.; Cagney & Lacey; Simon & Simon; Miami Vice; T.J.Hooker; In the Heat of the Night; Murder, She Wrote; L.A. Law; The Commish; NYPD Blue;Walker, Texas Ranger; The X Files; Homicide; Law & Order; The Practice; Nash Bridges; JAG;Judging Amy; The Fugitive; The District; Level 9; The Job; Without a Trace; and Cold Case.”).127. See Richard Rogers et. al., “Everyone Knows Their Miranda Rights”: ImplicitAssumptions and Countervailing Evidence, 16 PSYCHOL. PUB. POL’Y & L. 300, 301 (2010)(“Inundated with television images of police arrests and ‘Mirandized’ suspects, most Americansbelieve they know their Miranda rights. Most persons can even recite familiar series of Mirandatypestatements beginning with ‘You have the right to remain silent.’”).128. See id.129. 16 PSYCHOL. PUB. POL’Y & L. 300, 301 (2010).130. Id. at 306 (“Defendants and college undergraduates were administered an extensivebattery of psychological and cognitive measures . . . . [including] [t]he Miranda Quiz [which] is aself-report questionnaire in which examinees make a forced-choice true-false rating of 25statements assessing misconceptions about Miranda rights.”).131. Id. at 303 (“The purpose of the Miranda Quiz was to assess salient issues related toMiranda comprehension and subsequent waivers.”).132. Id. at 302.133. Id. at 300.134. Id. at 305 (“In the current study, 149 defendants were recruited from two separate sites inTexas and Oklahoma. Detainees in Texas were recruited from a county jail that services a diversearray of both rural and urban areas surrounding Dallas, Texas, while Oklahoma participants wereenlisted from two Tulsa-area jails . . . . The defendant sample consisted of 111 (74.5%) male and38 (25.5%) female defendants with a mean age of 32.12 [years] . . . .”).135. Id. at 310.

496 SOUTHWESTERN LAW REVIEW [Vol. 42that criminal defendants know their Miranda right to remain silent is “likelyperpetuated by the public’s frequent, informal exposure to warningsthrough popular television shows and rote recitation of partial Mirandawarnings.” 136 Although the full Miranda warnings are usually not given inthe media, the Miranda warning of the right to remain silent is consistentlyused. 137However, Rogers et al. do argue that there is a misconception andmisunderstanding of the scope of protection for the Miranda right to remainsilent. 138 The authors’ study showed that “many defendants misinterpret theword ‘right’ as a choice. . .rather than a Constitutional protection.” 139Further, they found that “many defendants inaccurately believe innonexistent safeguards as partial protections against self-incrimination.” 140Yet these arguments are outside the scope of whether Americans inherentlyknow that they have a right to remain silent upon getting arrested. 141Because Americans know they have a right to remain silent, a mistakenbelief of the scope of this protection only strengthens the argument thatsilence or demeanor after an arrest is “insolubly ambiguous.” 142 Thus,Rogers et al.’s argument of criminal defendants’ misinterpretation of theright to remain silent actually provides support for the Doyle decision’sunderstanding that PAPM demeanor evidence is “insolubly ambiguous.” 143Additionally, this misunderstanding of the Miranda right provides furthersupport for the notion that criminal defendants need more protection afterbeing arrested and before receiving the Miranda warnings. 144136. Id. at 313.137. See id.138. Id. at 300.139. Id. at 303.140. Id. at 310.141. The authors’ argument about misconceptions does not necessarily pertain to the fact thatAmericans inherently know and believe, proven by their study, that they have a right to remainsilent upon being arrested. See id. at 300, 303, 307-10.142. See Doyle v. Ohio, 426 U.S. 610, 617 (1976).143. See id.144. See infra Part IV.

2013] DEMEANOR EVIDENCE DOES NOT DEMEAN ANYTHING 497B. Since Americans Know Their Right to Remain Silent, Their Silence andDemeanor Is Insolubly Ambiguous Since It Is Inconclusive Whether thatSilence and Demeanor Is an Admission of Guilt or an Arrestee ExercisingHis or Her Right to Remain SilentAs discussed in Doyle v. Ohio, 145 “[s]ilence in the wake of these[Miranda] warnings may be nothing more than the arrestee’s exercise ofthese Miranda rights. Thus, every post-arrest silence is insolublyambiguous because of what the State is required to advise the personarrested.” 146 Because Americans know their Miranda right to remainsilent, 147 silence and demeanor evidence after a criminal defendant isarrested can either be evidence of guilt OR can be an exercise of the right toremain silent. A criminal defendant’s PAPM actions are inconclusive ofevidence of guilt or an invocation of his or her Miranda right to remainsilent because it can be argued for both. For example, referring back to theaforementioned hypothetical, 148 after John Doe was arrested and before hewas given his Miranda warnings, John Doe remained silent and did notmove when the officer told him what he discovered in his vehicle. It can beargued that a non-guilty person would make an objection to the charges andargue that he or she is innocent. 149 Conversely, however, it can also beargued that John Doe knew his rights and he wished to invoke his right toremain silent. 150 Both situations are reasonable explanations for John Doe’ssilence and demeanor and further the argument that such evidence is“insolubly ambiguous.” 151 Because it is unclear whether such evidence isprobative of guilt or an exercise of a Miranda safeguard, theaforementioned evidence is of extremely low probative value. 152Also, evidence of low probative value can be challenged asinadmissible by violating Federal Rule of Evidence 403, which barsevidence whose probative value is substantially outweighed by the dangerof unfair prejudice. 153 Since demeanor evidence and evidence of silenceused as substantive evidence of guilt is subject to a 403 analysis and will beinadmissible if the probative value is substantially outweighed by risk of145. 426 U.S. 610 (1976).146. Id. at 617 (emphasis added).147. See Rogers et al., supra note 127, at 301.148. See supra pp. 481-82.149. See Willis, supra note 50, at 754.150. See, e.g., Doyle, 426 U.S. at 617.151. See id.152. See id.153. See FED. R. EVID. 403.

498 SOUTHWESTERN LAW REVIEW [Vol. 42unfair prejudice, 154 admission of such evidence would likely be unfairlyprejudicial to the criminal defendant since the evidence is “insolublyambiguous.” 155 Therefore, to adhere to the protections of Miranda and theFifth Amendment, PAPM demeanor evidence should be inadmissibleagainst a criminal defendant. However, a uniform rule against theadmissibility of PAPM demeanor and silence evidence 156 would solve thisissue before a case ever went to trial.IV. DESPITE STRONG ARGUMENTS FOR ITS ADMISSIBILITY, POST-ARREST,PRE-MIRANDA DEMEANOR EVIDENCE SHOULD BE INADMISSIBLEAGAINST A CRIMINAL DEFENDANT BECAUSE IT UNDERMINES ANDVIOLATES THE FIFTH AMENDMENT’S PRIVILEGE AGAINST SELF-INCRIMINATIONAs established above, the Fifth Amendment and the right to remainsilent are triggered upon a criminal defendant’s arrest, regardless of whetherthe criminal defendant is given his or her Miranda warnings. 157 Because ofAmericans’ exposure to the criminal justice system through mass media, 158Americans understand their right to remain silent. 159 Since Americans knowtheir right to remain silent, 160 PAPM demeanor evidence and silence is thus“insolubly ambiguous” 161 and of extremely low “probative value.” 162Because the Fifth Amendment attaches upon arrest and custody, it isinconclusive whether a criminal defendant is exercising his privilegeagainst self-incrimination or admitting guilt through PAPM demeanorevidence. 163 Therefore, admission of such evidence would violate the FifthAmendment.Advocates for its admissibility 164 make strong arguments that PAPMdemeanor evidence and silence may be probative and admissible as154. See United States v. Hale, 422 U.S. 171, 180 (1975) (“Not only is evidence of silence atthe time of arrest generally not very probative of a defendant’s credibility, but it also has asignificant potential for prejudice.”).155. See, e.g., Doyle, 426 U.S. at 617.156. See supra Part II.157. See Miranda v. Arizona, 384 U.S. 436, 477-79 (1966); accord Doyle, 426 U.S. at 617.158. See Rogers et al., supra note 127, at 301.159. Id. at 301-02.160. Id.161. Doyle, 426 U.S. at 617.162. See United States v. Hale, 422 U.S. 171, 180 (1975).163. See Doyle, 426 U.S. at 617; Hale, 422 U.S. at 180.164. The Fourth, Fifth, Eighth, and Eleventh Circuits have held that PAPM demeanorevidence is admissible as substantive evidence of guilt. See supra Part II.A.

2013] DEMEANOR EVIDENCE DOES NOT DEMEAN ANYTHING 499substantive evidence of guilt, 165 relying heavily on Doyle v. Ohio, 166 wherethe court stated, “while it is true that the Miranda warnings contain noexpress assurance that silence will carry no penalty, such assurance isimplicit to any person who receives the warnings.” 167 Further, proponentsfor demeanor evidence admissibility argue that such evidence is probativeof guilt and should thus be admissible. 168 However, the arguments of theFourth, Fifth, Eighth, and Eleventh Circuits go against the policies of theFifth Amendment and case law following Miranda v. Arizona. 169 To avoidfurther confusion and to adhere to the policies of the Fifth Amendment andin Miranda, the privileges against self-incrimination should bar any PAPMdemeanor evidence as substantive evidence of guilt.CONCLUSIONIn sum, exposure to the criminal justice system through the massmedia 170 has enhanced Americans’ awareness of their Miranda rights andshows that Americans inherently know their right to remain silent. 171 SinceAmericans inherently know their right to remain silent, any PAPMdemeanor evidence and evidence of silence is “insolubly ambiguous” 172 andof low “probative value.” 173Further, the Fifth Amendment privilege against self-incrimination andthe right to remain silent attach upon a criminal defendant’s arrest. 174Because this privilege against self-incrimination attaches upon an arrest, notthe issuing of the Miranda warnings, 175 it is inconclusive whether PAPMdemeanor evidence or evidence of silence is an exercise of the FifthAmendment privilege against self-incrimination or an admission of guilt.To admit such evidence would clearly violate the principles of the FifthAmendment and would infringe upon the protection it is trying to establish.While criminal defendants can challenge admissibility of PAPMevidence under Federal Rule of Evidence 403 as being unfairly prejudicial,to adhere to the principles of the Fifth Amendment and its right to protect165. See supra notes 74-77 and accompanying text.166. 426 U.S. 610 (1976).167. Id. at 618.168. See, e.g., United States v. Musquiz, 45 F.3d 927, 930-31 (5th Cir. 1995).169. See supra Part II.A.170. See Rogers et al., supra note 127, at 301.171. Id. at 301-02.172. Doyle v. Ohio, 426 U.S. 610, 617 (1976).173. United States v. Hale, 422 U.S. 171, 180 (1975).174. See Doyle, 426 U.S. at 617.175. Id.

500 SOUTHWESTERN LAW REVIEW [Vol. 42against self-incrimination, it seems that the only way to protect a criminaldefendant’s Fifth Amendment right would be to hold any PAPM demeanorevidence to be inadmissible as substantive evidence of guilt. As such, it isimperative to establish a uniform rule against the admissibility of PAPMdemeanor evidence and evidence of silence. Without doing so, andremaining in the status quo, a criminal defendant will have differentadmissibility standards of PAPM demeanor evidence in differentjurisdictions of the United States. To remedy this issue, the only plausiblesolution, one that adheres to the Fifth Amendment, would be to hold allPAPM demeanor evidence and evidence of silence to be inadmissible assubstantive evidence of guilt.Benjamin Berkley** Law student and staff member of the Southwestern Law Review, Southwestern LawSchool. I would like to thank Daniel Kohler, my Notes & Comments Editor, for assisting me inwriting this comment.