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Silence Speaks Volumes: How The Absence Of Testimonial Compulsion Prior To Arrest Makes A Defendant’S Pre-Arrest Pre-Miranda Silence Admissible As Substantive Evidence, Jason E. Niehaus

Jason E Niehaus

The scope of this article addresses whether using a Defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt violates the Texas Constitution. Federal cases are addressed to illustrate the different approaches used to analyzing the constitutional questions raised by using the Defendant's silence as evidence. The analysis employed by Texas courts in ruling on the issue are then compared to the federal cases. After reviewing the federal and state cases on point, the conclusion is reached that the trend in Texas towards allowing the use of a Defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt does not offend the …