Doyle at work in the circuits: can the government highlight omissions and silence in a post-Miranda statement?
More than thirty years ago, the Supreme Court laid down in Doyle v. Ohio, 426 U.S. 610 (1976) a principle both elegant in its fairness and seemingly simple in its application: due process does not permit the government to make use of the silence at the time of arrest and/or questioning of a Mirandized suspect. But, as illustrated in recent cases from the Fifth and Ninth Circuits, the results of applying Doyle have been less than even and predictable.
In the Fifth Circuit case, the defendant was arrested as a felon-in-possession and had been administered Miranda warnings, after which he answered some questions before stopping. United States v. Fambro, 526 F.3d 836 (5th Cir. 2008). Fambro did not testify at trial, but the interviewing officer testified that Fambro did not deny knowing of the existence of the weapon which was found and the prosecutor argued in closing that Fambro had not denied knowledge or possession of the weapon. The court held that there was no Doyle violation, but in doing so the Fambro panel seemed to distort the trial record and ignore inconsistent intra-circuit precedent. For example, the opinion reported a series of direct examination questions put to the interviewing officer which clearly intended to highlight the omissions in Fambro's arrest statement ("Did he say [X]? No, he did not"]. Yet, the Fambro panel somehow characterized these questions not as exploiting the defendant's Mirandized silence, but as "testimony [which] only emphasizes what Fambro had said in his post-Miranda statement." Of course, pointing out that which a witness did not say could always be characterized as emphasizing the remainder which was said, but that logic guts Doyle completely. The Fambro court also brushed aside other Fifth Circuit decisions which "seem[] internally inconsistent."
In contrast, the Ninth Circuit recently came out dramatically differently in its application of Doyle. In United States v. Caruto, 526 F.3d 445 (9th Cir. 2008), the defendant's conviction was reversed because of a Doyle violation. In a drug importation case, Caruto had been arrested at a border crossing when cocaine was found in the gas tank of her truck. After being read her Miranda rights, Caruto answered a few questions from ICE agents, then invoked her right to counsel and the interview ended. An issue at trial was under what circumstances was Caruto in possession of the truck. One of the interviewing agents testified affirmatively to what Caruto had said in the interview about the vehicle. But in summation, the government argued from the omissions in Caruto's statement, repeatedly asking the jurors "Why did she not say [X, Y, or Z as to the truck]?" The Ninth Circuit held that this argument impermissibly highlighted the omissions from Caruto's statement and violated Doyle.
