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Asking For An Attorney Can't Be Used as Evidence Under 5th Am

By Gabriella Khorasanee, JD on August 28, 2013 | Last updated on January 31, 2023
Tayfun Okatan, a U.S. citizen, was convicted of three counts related to trying to bring an illegal alien into the United States, from the Canada border. Okatan raised several issues on appeal, most of which the Second Circuit rejected in a separate summary order. He did however, raise one successful issue: Whether his Fifth Amendment rights were violated when the government used his pre-arrest request for an attorney, and his refusal to answer questions without one, as substantive evidence of guilt. The Second Circuit found that his rights were violated, and vacated and remanded.

Fifth Amendment

Fifth Amendment jurisprudence is clear about defendants' post-arrest right not to self-incriminate, and the inability to use such silence as substantive evidence of guilt. What is not clear, is whether those proscriptions apply in a pre-arrest setting.

The Effect of Salinas v. Texas

Though the Supreme Court had the opportunity to addresses a question similar to the one raised here, but it didn't, stating it was "unnecessary to reach that question." Instead, the Salinas v. Texas court provided some guidance to the questions of whether a defendant's pre-arrest silence could be used by the government as substantive evidence of guilt by imparting a two part test: (1) whether silence is an assertion of Fifth Amendment rights; and (2) whether the government can use that silence as substantive evidence of guilt.

The Second Circuit's Analysis

Here, the court noted that Okatan successfully invoked his privilege against self-incrimination, and he was entitled to do so under the circumstances, because he had reason to believe that if he answered the questions posed to him, they could be used later to incriminate him. Furthermore, the government could not use that as substantive evidence of guilt. The Second Circuit noted that the same policy reasons for prohibiting a prosecutor from commenting on a defendant's lack of testimony ring true here as well, and quoted the Supreme Court, stating: "such comment would be 'a penalty imposed by courts for exercising a constitutional privilege,' which 'cuts down on the privilege by making its assertion costly.'" The Second Circuit also noted that all other Circuits which have addressed the same question have come to the same conclusion. Because the prosecution's case lacked any solid evidence and was purely circumstantial, the court found the inclusion of Okatan's pre-arrest request for counsel was not harmless error.

Post-Salinas Decisions

By granting cert in the Salinas case, the Supreme Court showed a willingness to tackle this issue, but it turned out the particular facts of that case prevented a meaningful decision because the defendant didn't actually ask for an attorney -- he was just silent. Perhaps in this new line of cases dealing with pre-arrest invocations of the right not to self-incriminate will lead us to the Supreme Court for ultimate clarity. Until then, it's the law in the Second, Sixth, First and 10th circuits.

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