# Amicus Curiae Brief — Bagley v. Combs

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1477%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1035

## Text

‘yy 3 FL aye

No. 00-312 =
tether SR BE

In the
CLERK

Supreme Court of the Aniteb-States-

MARGARET A. BAGLEY, WARDEN,

. Petitioner,

RONALD DEAN COMBS,
Respondent.

On Petition for Writ of Certiorari to the United
States Court of Appeals for the Sixth Circuit

BRIEF OF THE STATES OF ILLINOIS, ALABAMA,
ARKANSAS, DELAWARE, IDAHO, LOUISIANA, MAINE,
NEBRASKA, NEVADA, NEW HAMPSHIRE,
OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA,
TENNESSEE, UTAH AND WYOMING AS AMICI
CURIAE IN SUPPORT OF PETITIONER

JAMES E. RYAN
Attorney General of Illinois

JOEL D. BERTOCCHI
Solicitor General of Illinois

WILLIAM L. BROWERS
MICHAEL M. GLICK
Counsel of Record
Assistant Attorneys General
100 West Randolph Street
12 Floor
Chicago, Illinois 60601
(312) 814-2232

Counsel for Amici States

[additional counsel listed on inside cover]

Printed by Authority of the State of Illinois (P.O. 28128—75—10-30-09)

Bill Pryor

Attorney General

of Alabama

11 South Union Street
Montgomery, AL 36130

Mark Pryor

Attorney General

of Arkansas

323 Center Street
Suite 200

Little Rock, AR 72201

M. Jane Brady
Attorney General

of Delaware

820 N. French Street
Wilmington, DE 19801

Alan G. Lance
Attorney General
of Idaho

P.O. Box 83720
Boise, ID 83720

Richard P. Ieyoub
Attorney General

of Louisiana

P.O. Box 94095

Baton Rouge, LA 70804

Andrew Ketterer
Attorney General

of Maine

Six State House Station
Augusta, ME 04333

Don Stenberg
Attorney General
of Nebraska

2115 State Capitol
Lincoln, NE 68509

Frankie Sue Del Papa
Attorney General

of Nevada

100 N. Carson Street
Carson City, NV 89701

Philip T. McLaughlin

Attorney General

of New Hampshire

33 Capitol Street !
Concord, NH 03301 y

W.A. Drew Edmondson
Attorney General

of Oklahoma

2300 N. Lincoln Blvd.
Suite 112

Oklahoma City, OK 73105

Charles M. Condon
Attorney General

of South Carolina
P.O. Box 11549
Columbia, SC 29211

Mark Barnett

Attorney General

of South Dakota

500 East Capitol Avenue
Pierre, SD 57501

Paul G. Summers
Attorney General

of Tennessee

Cordell Hull Building
Nashville, TN 37243

Jan Graham

Attorney General

of Utah

236 State Capitol

Salt Lake City, UT 84114

Gay Woodhouse
Attorney General

of Wyoming

123 Capitol Building
Cheyenne, WY 82002

i

TABLE OF CONTENTS

PAGE
Te Ce AFR RE OID on ccs scenccncccucceses ii
INTEREST OF THE AMICI CURIAE ............... 1
i 4 ge go t+» 1
REASONS FOR GRANTING THE PETITION ........ 3

I.

This Court should resolve the longstanding
conflict over whether the Fifth Amendment
allows use of pre-Miranda silence for purposes
other than impoachenemt 2.0... cc ccc cee eeee 3

II.

This Court should address whether the concept
of “prejudice” embodied in Strickland may be
established by testimony from a defense wit-
ness on cross-examination which merely con-
firms the defendant’s guilt ................... 14

i PECTIC TTT OCCT TIT TET ETC T Oe 20

li

TABLE OF AUTHORITIES
Cases PAGE(S)
Baxter v. Palmigiano, 425 U.S. 308 (1976) ............ 7
Brown v. United States, 356 U.S. 148 (1958) ......... 11
Chaffin v. Stynchcombe, 412 U.S. 17 (1973) ......... 8,9

Collins v. Lockhart, 754 F.2d 258 (8" Cir.),
cert. denied, Lockhart v. Collins, 474
SF SE OED rs 9.0 be cb RA + ees Cae 16

Coppola v. Powell, 878 F.2d 1562 (1" Cir.),
cert. denied, Powell v. Coppola, 493

ee Te ree ee 5
Daubert v. Merrell Dow Pharmaceuticals, Inc..,

OOD: UB STOOD 5 Ce RS a ks 11
Dickerson v. United States, __ U.S. ___,

LSD GAR. TRB o's Cian I a ss 3
Doyle v. Ohio, 426 U.S. 610 (1976) ............... 8,11
Evitts v. Lucey, 469 U.S. 387 (1985) ................ 18
Fletcher v. Weir, 455 U.S. 603 (1982) ... ............ 4
Griffin v. California, 380 U.S. 699 (1965) ......... 3,5, 6

Gideon v. Wainwright, 372 U.S. 335 (1963) .......... 14

lili

Hartigan v. Commonwealth, 31 Va. App. 243,
522 S.E.2d 406 (Va. App. 1999), reh’g
granted, 31 Va. App. 511, 525 S.E.2d 9
(2000) and on reh’g en banc, remanded on
other grounds 32 Va. App. 873, 531 S.E.3d
NOE svc uc WWO Sid CEPR Teak ies Gd Gawd odio 5

Herring v. New York, 422 U.S. 853 (1975) ........... 18

Holman v. Page, 95 F.3d 481 (7™ Cir. 1996),
reh’g en banc denied, 102 F.3d 872 (1996),

and cert. denied, 520 U.S. 1254 (1997) ........... 17
Jenkins v. Anderson, 447 U.S. 231

CEE ka vine cw ecdtda oek ONES 3, 4, 7, 8, 9, 10, 11
Johnson v. Zerbst, 304 U.S. 458 (1938) .............. 14
Key-El v. State, 349 Md. 811, 709 A.2d 1305

(Md.), cert. denied, 525 U.S. 917 (1998) ........... 9
Kimmelman v. Morrison, 477 U.S. 365 (1986) ........ 17
Lockhart v. Fretwell, 506 U.S. 364

eee id wan a Cab Cees <o 14, 15, 16, 17, 18
Lowenfield v. Phelps, 484 U.S. 231 (1988),

reh’g denied, 485 U.S. 944 (1988) ............... 16
McGautha v. California, 402 U.S. 183 (1971) ....... 6,7
Miranda v. Arizona, 384 U.S. 436 (1966) ............. 3

Nix v. Whiteside, 475 U.S. 157 (1986) ... 15, 16, 17, 18, 19

Pennsylvania v. Muniz, 496 U.S. 582 (1990) ......... 13

iv

People v. De George, 73 N.Y.2d 614, 543
N.Y.S.2d 11, 541 N.E.2d 11 (N.Y. 1989) ........... 5

Perry v. Lockhart, 871 F.2d 1384 (8 Cir.
1989), reh’g en banc denied, 1989 U.S.
App. LEXIS 11036 (1989), and cert.
denied, 493 U.S. 959 (1989) ..... 2... cc cw ce eee 16

Powell v. Alabama, 287 U.S. 45 (1932) .............. 14

State v. Adams, 221 Wis. 2d 1, 584 N.W.2d
OOS Cores. CE Os TI ss Ss Settee Sicnece.. )

State v. Dreher, 302 N.J. Super. 408, 695
A.2d 672 (N.J. Super. Ct. App. Div.),
certification denied, 152 N.J. 10, 702
A.2d 349 (1997), cert. denied, 524 U.S.
Pe IAS SASS OS ye ee 9

State v. Dunkel, 466 N.W.2d 425
Ss Se A ED kos i odo baa oka cawnaces 5

State v. Easter, 130 Wash. 2d 228,
Pe BP rr Pere erry 5

State v. Hegelson, 303 N.W.2d 342
CFG ERD clits vlan docu aueces Pun} seseeaees 10

State v. Houle, 162 Vt. 41, 642 A.2d
LITE CHE. SO ws 2 ci SS ese ci ae 10

State v. Kiser, 43 Conn. App. 339, 683 A.2d
1021, 1029 (Conn. App. Ct.), appeal
denied, 239 Conn. 945, 686 A.2d 122
(1996), cert. denied 520 U.S. 1190 (1997) ....... 9-10

Vv

State v. Lee, 15 S.W.3d 921, 2000 Tex. Crim.

App. LEXIS 44 (Tex. Crim App. 2000) ........... 10
State v. Masslon, 746 S.W.2d 618

Sk. TA SIE ence chececineebitetedes 10
State v. Moore, 131 Idaho 814, 965

P.O6 376 (ide Sk oh oe HAAS 5

_ State v. Palmer, 860 P.2d 339 (Utah App.),

cert. denied, 868 P.2d 95 (Utah 1993)............. 5
State v. Rowland, 234 Neb. 846, 452

DE. We FOG Cte: BOBO) So in ok eee siveawvess 5
Stone v. Powell, 428 U.S. 465 (1976) ................ 17
Strickland v. Washington, 466 U.S.

Oe iss SOR EES Se 14, 15, 19
Thomas v. Indiana, 910 F.2d 1413

Ps, SI ade kU on cinenveeeseneanus 9
Tortolito v. State, 901 P.2d 387 (Wyo. 1995)........... 5

United States v. Ballard, 423 F.2d 127
FO a a. ni ni Sewn sie ins DI 12

United States v. Burson, 952 F.2d 1196

(10™ Cir. 1991), cert. denied, Burson v.

United States, 503 U.S. 997 (1992) ............... 5
United States v. Hale, 422 U.S. 171 (1975) ........... 12

United States v. Isaac, 134 F.3d 199
(te, SUNN EF Li ae etl aes.e. 10

vi

United States v. Leichtman, 742 F.2d 598
C19" Clb, MONG Ss ik acs eR PE aw tet ee 11

United States v. Maggitt, 784 F.2d 590
Che: 0 6 RES BE: 11

United States v. McNatt, 931 F.2d 251
(4 Cir. 1991), cert. denied, McNatt v.
United States, 502 U.S. 1035 (1992) ............. 10

United States v. Moore, 322 U.S. App.
D.C. 334, 104 F.3d 377 (D.C. Cir.),
reh’g en banc denied, 324 U.S. App.
D.C. 53, 110 F.3d 99 (1997) ......... aA Sia ae He ox 5

United States v. Rederth, 872 F.2d 255
Pe: TU ass ea a een bi OCS 9

United States v. Rincon, 28 F.3d 921
(9" Cir.), cert. denied, Rincon v.
United States, 513 U.S. 1029 (1994) ............. 11

United States v. Rivera, 944 F.2d 1563
(32° Che. JOU. ce EI 9,13

United States v. Robinson, 485 U.S. 25
CRIES Ss ccc wacknawquesseekebbnkee eee eene Os 10

United States v. Shaw, 701 F.2d 367
(5™ Cir.), reh’g denied, 714 F.2d 544
(1983), cert. denied, Shaw v. United
Gentes, 66 UE: WOT GO oe ei isthe ccc wccsen 13

United States v. Whitehead, 200 F.3d 634
(9™ Cir. 2000), cert. denied, Whitehead
v. United States, 2000 U.S. LEXIS 6033
CS. Ook. CO. es ee ie 5

Vii

United States v. Zanabria, 74 F.3d 590
PO SI oo io evan ce

Wainwright v. Greenfield, 474 U.S. 286
EE KAKA sb OKs Oe Cease ce eke

Williams v. Taylor, 529 U.S. 362 (2000)

Additional Authority
Federal Rules of Evidence 401........
Federal Rules of Evidence 403 ........

Barbara Rook Snyder, A Due Process
Analysis of the Impeachment Use of
Silence in Criminal Trials, 29 Wm

_ & Mary L Rev 285, 313 (1988) ....

John Henry Wigmore, 3A Evidence in
Trials at Common Law § 1042
(Chadbourn rev ed 1970) .........

1

INTEREST OF THE AMICI CURIAE

This case addresses two interrelated issues. The first of
these issues is whether the reliability of the criminal
process is enhanced by allowing prosecutors to use pre-
Miranda statements to rebut a defense of menta) incapac-
ity. The Court’s decision on this issue will eliminate long-
standing conflict over what some state supreme courts and
federal courts of appeal consider a legitimate government
practice, and others view as a violation of the fifth amend-
ment. The Court’s resolution of this question will affect the
day-to-day criminal investigation by state and local police
officers as well as the effective prosecution based upon the
evidence obtained in these investigations. The second issue
is whether the reliability of the criminal process is en-
hanced by finding that the concept of Strickland prejudice
is not violated by evidence which merely confirms the
defendant’s guilt. As the States’ chief law enforcement
officers, the undersigned Attorneys General have a direct
and significant interest in the outcome of this case.

SUMMARY OF ARGUMENT

The Fifth Amendment expressly protects against com-
pelled self-incrimination. Through its opinions, this Court
has recognized that compelled silence, similarly, is pro-
tected by the Fifth Amendment. However, the Court has
explicitly left open the question of whether or under what
circumstances silence which is not compelled is protected by
the Fifth Amendment. Left unsettled, this question has re-
sulted in direct conflict among the circuit courts of appeal.
The undecided question is squarely presented by the first
question presented in the instant case.

The Fifth Amendment concern here requires an answer
to whether, as some circuits and state supreme courts hold,
there exists an absolute right to remain silent, or whether,

ai

2

as other courts hold, it is necessary to strike a balance
between the policies underlying an individual’s constitu-
tional right to remain silent and society’s legitimate in-
terest in law enforcement. Those courts which allow the
government to comment on a defendant’s silence find that |
there is no impermissible burden on the Fifth Amendment
when the silence either (1) occurred prior to the receipt of
Miranda warnings or (2) was a fair comment used to rebut
or respond to an argument or defense. On balance here,
Respondent’s pre-Miranda statement used to rebut an
affirmative defense of mental incapacity should not be
found violative of the Fifth Amendment.

Since the notion of an absolute right to silence appears to
have been undermined by more recent case law, and since
the practical utility of using a pre-Miranda statement to
rebut an incapacity defense is consistent with precedent
which allows pre-Miranda silence to impeach a defendant’s
testimony, this Court should answer the question left un-
answered by its current decisions. Resolution of this ques-
tion would impact the amici states’ significant interest in
presenting relevant evidence which would serve to promote
the truthfinding function of criminal prosecutions.

Similarly, the second question »resented also concerns
the truthfinding process of a criminal trial. Specifically,
answering this question will serve to further define the
contours of Strickland prejudice and what factors ought not
to inform that inquiry. In analyzing an ineffective assis-
tance of counsel claim, the Court has eschewed mechanical
application of its rules in favor of a focus on whether the
proceeding was rendered fundamentally unfair or the ver-
dict unreliable. The prosecution’s cross-examination here
did not render the proceeding unfair or the verdict unjust
because it merely provided evidence which confirmed the
defendant’s guilt. The contrary finding by the lower court
should be regarded as a windfall to the defendant rather

3

than the legitimate prejudice contemplated by the Court’s
opinion in Strickland. Should the lower court’s decision
stand uncorrected, it will chill the effective advocacy of
state prosecutors and frustrate what this Court has rec-
ognized as the government’s chief purpose in a criminal
trial—seeking a judgment resting on truth.

Moreover, it should have been apparent to the lower court
that there was no reasonable probability of acquittal based
upon the facts of record. Overwhelming evidence was pre-
sented at trial which established the requisite intent and
premeditation such that, even absent the evidence that the
Respondent claimed should not have been presented, there
was no reasonable likelihood of acquittal.

REASONS FOR GRANTING THE PETITION

I. This Court should resolve the longstanding conflict
over whether the Fifth Amendment allows use of
pre-Miranda silence for purposes other than im-
peachment.

Recently, this Court expressly stated that “no constitu-
tional rule is immutable” since “[nJo court laying down a
general rule can possibly foresee the various circumstances
in which counsel will seek to apply it.” See Dickerson v.
United States, __ U.S. __, 120 S.Ct. 2326, 2335 (2000)
(discussing the constitutionality vel non of the warnings of
Miranda v. Arizona, 384 U.S. 436 (1966)). Consistent with
this statement, the contours of the right to silence protected
by the Fifth Amendment have been refined by the Court’s
decisions over time. Initially, the Court recognized an ab-
solute right to silence. Griffin v. California, 380 U.S. 609,
613-15 (1965). However, subsequent decisions have clarified
that the right may yield under certain circumstances. See
Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980) (impeach-
ment use of prearrest, pre-Miranda warnings silence does

4

not offend the Fifth Amendment); see also Fletcher v. Weir,
455 U.S. 603, 607 (1982) (impeachment use of post-arrest,
pre-Miranda warnings silence does not offend due process).
The first question presented by the petition for writ of
certiorari seeks to resolve a question, left unanswered by
the Court’s decision in Wainwright v. Greenfield, 474 U.S.
286, 295 (1986). While that decision clarified that the use of
post-arrest, post-Miranda silence as evidence of sanity
violated due process, id. at 295, the Court has explicitly left
open “whether or under what circumstances prearrest [or
pre-Miranda] silence’ may be protected by the Fifth Amend-
ment.” Jenkins, 447 U.S. at 236 n. 2. The court’s silence on
this question has led the circuit courts of appeal to develop
two conflicting lines of caselaw.

The importance of the question left open by this Court’s
decisions is clear. Every day, people are questioned in the
course of police investigations before arrests are made or
suspects are named. Much of this investigation necessarily
occurs prior to Miranda warnings being given. As a result,
Griffin and its progeny provide state prosecutors with no
guidance in analyzing any resulting pre-Miranda state-
ments. Nor do these cases shed any light on the specific
question presented by Petitioner—whether a defendant’s
constitutional privilege against self-incrimination is im-
permissibly burdened by the use of a pre-Miranda state-
ment to rebut a claim of mental incapacitation. Guidance on
this question is essential because both the state appellate
courts and the federal circuit courts of appeal are sharply
divided on the utility of these statements and the constitu-
tional rights contained in the Fifth Amendment should be
uniformly applied by states and circuit courts alike. The

’ Even if the word “silence” is construed to mean a spoken in-
vocation of the privilege against self-incrimination, like that in-
volved in the instant case, Jenkins speaks only to the use of
prearrest silence for impeachment purposes.

5

split among both state appellate courts and the federal
circuits on this significant question of constitutional law
requires resolution.

A. The Griffin - Jenkins split

The split among the circuits/state courts may be attrib-
uted to the lower courts’ reliance upon one of two decisions.
Those circuits or state courts that favor exclusion of pre-
arrest silence rely on the Court’s suggestion in Griffin, that
the Fifth Amendment guarantees an absolute right to
remain silent.” Griffin, 380 U.S. at 613-15 (holding that a

2 Circuits favoring the exclusion of prearrest silence include the
first (Coppola v. Powell, 878 F.2d 1562, 1565-66 (1" Cir.), cert.
denied, Powell v. Coppola, 493 U.S. 969 (1989)); the ninth (United
States v. Whitehead, 200 F.3d 634, 639 (9" Cir. 2000), cert. denied,
Whitehead v. United States, 2000 U.S. LEXIS 6033 (U.S. Oct. 2,
2000)); the tenth (United States v. Burson, 952 F.2d 1196 (10 Cir.
1991), cert. denied, Burson v. United States, 503 U.S. 997 (1992));
and D.C. (United States v. Moore, 322 U.S. App. D.C. 334, 104
F.3d 377, 389 (D.C. Cir.), reh’g en banc denied, 324 U.S. App. D.C.
53, 110 F.3d 99 (1997)); but see pg. 9-10, infra, (for a list of circuits
which permit prosecutorial comment on a defendant's silence).
Similarly, the following states appellate courts have held that the
use of pre-arrest, pre-Miranda silence to infer guilt violates a
defendant’s Fifth Amendment right to remain silent: Hartigan v.
Commonwealth, 31 Va. App. 2438, 522 S.E.2d 406, 409-410 (Va.
App. 1999), reh’g granted 31 Va. App. 511, 525 S.E.2d 9 (2000),
and on reh’g en banc, remanded on other grounds, 32 Va. App.
873, 531 S.E.2d 63 (2000); State v. Moore, 131 Idaho 814, 965 P.2d
174 (Ida. 1998); State v. Easter, 130 Wash. 2¢ 228, 922 P.2d 1285
(Wash. 1996); Tortolito v. State, 901 P.2d 387 (Wyo. 1995); State
v. Palmer, 860 P.2d 339 (Utah App.), cert. denied, 868 P.2d 95
(Utah 1993); State v. Dunkel, 466 N.W.2d 425, 428-29 (Minn. Ct.
App. 1991); State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (Neb.
1990); People v. De George, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541
N.E.2d 11, 13 (N.Y. 1989); but see n. 6, infra (for a list of state
courts which have held that evidence of an accused’s prearrest

(continued...)

6

section of the California state constitution that allowed a
prosecutor to comment on a defendant’s refusal to testify
violated the Fifth Amendment). Although the Griffin ap-
proach supports a prohibition against substantive use of
prearrest silence, Griffin itself does not address the use of
prearrest silence. Moreover, the Court’s subsequent deci-
sions appear to have so undermined Griffin that the Court
would be unlikely to use that decision to preclude the use of
pre-Miranda silence for purposes of rebuttal.

1. Erosion of Griffin’s absolute Prohibition

In more recent decisions, this Court appears to have cast
doubt on Griffin’s “penalty doctrine.” Suggesting that the
Fifth Amendment does not guarantee an absolute right to
silence, the Court has held that the Constitution does not
prohibit every government action that might penalize the
exercise of the privilege. The Court has subsequently
maintained that the criminal justice process properly re-
quires defendants to make difficult choices.* For example,

2 (...continued)
silence does not violate the Fifth Amendment in the absence of
government compulsion to speak or remain silent prior to arrest).

8 What has come to be known as the “penalty doctrine” evolved
from the Griffin court’s explanation that comment by a prosecutor
on a defendant’s failure to take the stand violates the Fifth
Amendment because it “is a penalty imposed by courts for ex-
ercising a constitutional privilege. It cuts down on the privilege by
making its assertion costly.” Griffin, 380 U.S. at 614.

* See McGautha v. California, 402 U.S. 183, 213 (1971) (explain-

ing that the criminal justice process often requires defendants to

make difficult choices and that the Constitution does not forbid

the government from requiring these choices); see also Barbara
Rook Snyder, A Due Process Analysis of the Impeachment Use of
Silence in Criminal Trials, 29 Wm & Mary L Rev 285, 313 (1988)

} (continued...)

2s - , aod -

7

in McGautha v. California, 402 U.S. 183 (1971), the Court
held that a single jury may constitutionally both decide
a defendant’s guilt and determine his sentence. The de-
fendant had argued that the determiration of guilt and
punishment at a single trial violated the privilege against
self-incrimination, because such a practice discourages the
defendant from remaining silent at the culpability stage of
the trial for fear that, if found guilty, the jury will sentence
him without having heard from him. Jd. at 213. Although
the Court acknowledged that, in a single-verdict trial, the
defendant may be pressured into taking the stand, the
Court held that the penalty for remaining silent is not
sufficiently serious to violate the Fifth Amendment. Sim-
ilarly, in Baxter v. Palmigiano, 425 U.S. 308 (1976), the
Court held that the Constitution permits officials at a
prison disciplinary hearing to draw an adverse inference
from an inmate’s refusal to testify. The Court refused to
extend the Griffin rule to disciplinary hearings because the
stakes are not as high as in criminal trials, and the use of
silence does not constitute as serious a penalty. Id. at 318-
19.

Most notably, the Court in Jenkins allowed the prose-
cution to impeach the defendant’s testimony with his
prearrest silence, explaining that while such use clearly
burdened the exercise of the privilege, the extent of the
burden was not impermissible under the dictates of the
Fifth Amendment. Jenkins, 447 U.S. at 238. Although
Griffin, unlike Jenkins, applies to substantive use of a de-
fendant’s silence, the Court’s recent treatment of the Griffin
“penalty doctrine” may indicate that Griffin would not be
extended to support exclusion of a defendant’s pre-Miranda

* (...continued)

(explaining that this Court has always been careful to make a
distinction between forcing a defendant to make a difficult choice,
which is acceptable, and governmental compulsion, which is not).

8

statement used as rebuttal evidence to a defense of mental
incapacity. The Jenkins rule, unlike Griffin, applies to
prearrest silence and has not been undercut by this Court.

2. Application of Jenkins’ impermissible burden
test

Circuits and state appellate courts that favor admitting
prearrest silence as evidence of guilt rely on the Court’s
more recent holding in Jenkins. Jenkins declined to follow
the view that the Fifth Amendment provides an absolute
right to silence, holding instead that courts must employ an
“jmpermissible burden” test to determine the constitutional-
ity of impeachment use of prearrest silence. The Jenkins
“impermissible burden” test provides the most relevant
source of analysis for determining whether prosecutorial
use of a pre-Miranda statement to rebut a defense of
mental incapacity violates the Fifth Amendment.

In Jenkins, the Court stated that although the potential
use of prearrest silence may deter a defendant from remain-
ing silent prior to arrest, “the Constitution does not forbid
‘every government-imposed choice in the criminal process
that has the effect of discouraging the exercise of constitu-
tional rights.’” Jenkins, 447 U.S. at 236 (quoting Chaffin v.
Stynchcombe, 412 U.S. 17, 30 (1973)). Instead, the Constitu-
tion forbids only those practices that place an “impermissi-
ble burden” on the exercise of those rights. Thus, the Court
introduced a balancing test that requires courts to deter-

5 In Doyle v. Ohio, 426 U.S. 610, 618 (1976), this Court prohibited
impeachment use of post-arrest silence. Therefore, a straight-
forward application of Griffin’s “penalty doctrine” would have
resolved the issue. However, the Doyle Court did not mention
Griffin or the Fifth Amendment issues. The Court’s failure to rely
on Griffin suggests that the “penalty doctrine” is not sufficiently
vital to support exclusion of a defendant’s silence outside the
courtroom.

9

mine whether the Constitution forbids a government prac-
tice by weighing “the legitimacy of the challenged govern-
mental practice” against. “whether compelling the election
impairs to an appreciable extent any of the policies behind
the rights involved.” Jenkins, 447 U.S. at 236-38 (quoting
Chaffin, 412 U.S. at 32). Thus, under the impermissible
burden test, not every government practice that discourages
defendants from remaining silent is unconstitutional.

Several circuits permit the government to comment on a
defendant’s “silence” if it occurred, as it did in the case at
bar, prior to the time that he was arrested and given his
Miranda warnings. See United States v. Zanabria, 74 F.3d
590, 593 (5™ Cir. 1996) (no Fifth Amendment violation
where silence at issue was neither induced by nor a re-
sponse to any action by a government agent); United States
v. Rivera, 944 F.2d 1563, 1568, 1568 n.12 (11 Cir. 1991)
(government may “unquestionably” comment on defendant’s
silence post-arrest because she had not yet received Mir-
anda’s “implicit assurances”); Thomas v. Indiana, 910 F.2d
1413, 1416 (7 Cir. 1990) (testimony about defendant’s
request for an attorney did not violate Greenfield since
request was made before defendant was given his Miranda
warnings); United States v. Rederth, 872 F.2d 255, 258 (8
Cir. 1989) (Doyle and its progeny were not violated where
defendant was not given affirmative governmental assur-
ances that his silence would not be used against him).

* Several state courts have also held that evidence of an accused’s
prearrest silence does not violate the Fifth Amendment in the
of government compulsion to speak or remain silent prior

to arrest, including: State v. Adams, 221 Wis. 2d 1, 584 N.W.2d
695, 699 (Wisc. Ct. App. 1998); Key-El v. State, 349 Md. 811, 709
A.2d 1305, 1310-11 (Md.), cert. denied, 525 U.S. 917 (1998); State
v. Dreher, 302 N.J. Super. 408, 695 A.2d 672, 704-06 (N.J. Super.
Ct. App. Div.), certification denied, 152 N.J. 10, 702 A.2d 349
(1997), cert. denied, 524 U.S. 943 (1998); State v. Kiser, 43 Conn.
(continued...)

10

Still other circuits permit the prosecution to “fairly com-
ment” on a defendant’s silence. See United States v. McNatt,
931 F.2d 251 (4™ Cir. 1991), cert. denied, McNatt v. United
States, 502 U.S. 1035 (1992) (relying upon the reasoning of
United States v. Robinson, 485 U.S. 25 (1988) (where
prosecutor sought permission to comment upon the defen-
dant’s failure to testify not on his own initiative, nor to
treat silence as substantive evidence of guilt, but simply in
fair response to a claim made by defendant or his counsel);
see also United States v. Isaac, 134 F.3d 199, 206-07 (3° Cir.
1998) (prosecutor’s rebuttal “was a fair response to defense
counsel’s closing argument”). Consistent with the reasoning
employed in Jenkins, these circuits reason that, on balance,
such silence is not violative of the Fifth Amendment.

The Jenkins majority based its holding on the finding that
“[ijmpeachment follows the defendant’s own decision to cast
aside his cloak of silence and advances the truthfinding
function of the criminal trial.” Jenkins, 447 U.S. at 238.
While this rationale was implicated in Jenkins because the
defendant there took the stand, arguably, it should apply
with equal force to a situation, like that at issue in the
instant case, where the State is merely rebutting an
argument advanced by the defendant.

* (...continued)

App. 339, 683 A.2d 1021, 1029 (Conn. App. Ct.), appeal denied,
239 Conn. 945, 686 A.2d 122 (1996), cert. denied 520 U.S. 1190
(1997); State v. Houle, 162 Vt. 41, 642 A.2d 1178, 1181 (Vt. 1994);
State v. Masslon, 746 S.W.2d 618, 626 (Mo. Ct. App. 1988); State
v. Hegelson, 303 N.W.2d 342, 348-49 (N.D. 1981); see also State v.
Lee, 15 S.W.3d 921, 925-926, n. 7, 2000 Tex. Crim. App. LEXIS 44
(Tex. Crim App. 2000) (implying that prearrest silence is a con-
stitutionally permissible area of inquiry).

11

B. Significant Governmental Interest

The prosecution has a significant interest in presenting
relevant evidence of a defendant’s guilt at trial. See Doyle
v. Ohio, 426 U.S. 610, 617 (1976) (stating that prosecution
has interest in presenting all relevant evidence to rebut
defendant's exculpatory story); see also United States v.
Maggitt, 784 F.2d 590, 596-98 (5 Cir. 1986) (discussing
prosecution’s “probative” interest in presenting evidence of
defendant’s prior criminal convictions); United States v.
Leichtman, 742 F.2d 598, 603-05 (11 Cir. 1984) (discussing
prosecutor’s “probative” interest in introducing evidence to
establish motive in kidnapping case). The prosecution’s
purpose is to convict guilty parties. In Jenkins, one of the
government's concerns was advancing the truthfinding
function of the jury. Jenkins, 447 U.S. at 238 (quoting
Brown v. United States, 356 U.S. 148, 156 (1958) (stating
that once defendant decides to testify, truth prevails in
balance against self-incrimination)). Similarly, in cases in-
volving prosecutorial use of prearrest silence, where the
relevant evidence is presented to rebut a defendant’s af-
firmative defense at trial, the government has a significant
interest in providing the jury with all available evidence to
assist with its deliberation.

Prosecutorial use of such prearrest silence will provide
additional relevant evidence to the jury, thus assisting the
jury in its search for the truth. See United States v. Rincon,
28 F.3d 921, 923-25 (9" Cir.), cert. denied, Rincon v. United
States, 513 U.S. 1029 (1994) (discussing importance of pro-
viding the jury with all evidence admissible under Federal
Rules of Evidence and relevant to the case) (citing Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
As the Jenkins Court explained, it is legitimate for the state
to impeach a defendant with his prearrest silence because
such impeachment “may enhance the reliability of the crim-
inal process.” Jenkins, 447 U.S. at 238. Moreover, the Fed-
eral Rules of Evidence permit admission in a criminal trial

12

of all relevant evidence, so long as its probative value ex-
ceeds its prejudicial effect. See Federal Rules of Evidence
401, 403. A defendant’s prearrest silence may have proba-
tive value if the silence is inconsistent with the position the
defendant assumes at trial.

In determining whether the prearrest silence is inconsis-
tent, some courts ask whether it would have been “natural”
for the defendant to speak up under the circumstances. See
United States v. Hale, 422 U.S. 171, 176-80 (1975) (citing
John Henry Wigmore, 3A Evidence in Trials at Common
Law § 1042 (Chadbourn rev ed 1970) (prohibiting impeach-
ment use of defendant’s pretrial silence on evidentiary
grounds). For example, if a defendant who has remained
silent prior to arrest takes the stand and testifies that he
acted in self-defense, the prearrest silence suggests that the
defendant is lying if it would have been natural for the
defendant to come forward with his defense earlier. Like-
wise, if a defendant refuses to speak with the police during
his prearrest investigation and then pleads not guilty at
trial, the prearrest silence suggests that the defendant may,
in fact, be guilty if it would have been natural for the de-
fendant to have spoken up and proclaimed his innocence
early on. If the prearrest silence does have probative value,
and if the probative value exceeds the potential prejudicial
effect, admitting the prearrest silence can help the fact
finder discover the truth.

Furthermore, evidence of prearrest silence may be likened
to circumstantial evidence which may be used at trial. For
example, in its case-in-chief, the prosecution may introduce
evidence that the defendant fled from the police. See United
States v. Ballard, 423 F.2d 127, 133 (5™ Cir. 1970) (assert-
ing that law is well settled that evidence of defendant’s
flight is admissible evidence against him). The type of pre-
arrest silence at issue here and flight are similar because
they both involve an affirmative act on the part of a de-
fendant which demonstrates an unwillingness to cooperate

13

with law enforcement. See Rivera, 944 F.2d at 1567-68
(stating that defendant’s prearrest silence is admissible and
likening it to prearrest demeanor evidence). Therefore,
because courts accept that evidence of flight is admissivle
in the State’s case-in-chief, evidence of a defendant’s pre-
arrest silence similarly should be found admissible.

Moreover, courts generally allow the prosecution to ques-
tion witnesses concerning a defendant’s demeanor. See
Pennsylvania v. Muniz, 496 U.S. 582, 585-87 (1990) (provid-
ing example of prosecutor asking demeanor questions in
drunk-driving context); see also United States v. Shaw, 701
F.2d 367, 384-85 (5" Cir. 1983), reh’g denied, 714 F.2d 544
(1983), cert. denied, Shaw v. United States, 465 U.S. 1067
(1984) (asserting that prosecution can comment on defen-
dant’s demeanor after defendant waives Miranda rights).
Prosecution witnesses can testify to a defendant’s unusual
behavior. See Muniz, 496 U.S. at 590-92. This does not dif-
fer significantly from an officer testifying to a defendant’s
silence during prearrest investigatory questioning. See
Rivera, 944 F.2d at 1567-68 (comparing evidence of defen-
dant’s prearrest silence to evidence of defendant’s prearrest
demeanor). Officers’ testimony concerning prearrest silence
and prearrest demeanor both reference a defendant’s un-
spoken actions. Therefore, because no significant difference
exists between demeanor and prearrest silence evidence, a
court should allow evidence of a defendant’s prearrest
silence in the prosecution’s case-in-chief. See Rivera, 944
F.2d at 1568-69.

Since the use of the defendant’s pre-Miranda “talk to my
lawyer” statement to rebut his claim of mental incapacity
is consistent with this Court’s precedent allowing for the
impeachment use of similar statements, will advance the
truthfinding function of criminal trials, is analogous to the
permissible use of circumstantial and demeanor evidence,
and because both the federal circuit courts of appeal and
the state appellate courts are split on whether the prosecu-

14

tion may use evidence of a defendant’s noncompelled pre-
arrest silence in its case-in-chief, this Court should grant
certiorari and resolve the confusion. This issue demands
uniform treatment among all federal and state courts.

II. This Court should address whether the concept of
“prejudice” embodied in Strickland may be estab-
lished by testimony from a defense witness on
cross-examination which merely confirms the de-
fendant’s guilt.

A. “Fair trial” understanding of Strickland

In Strickland v. Washington, 466 U.S. 666 (1984), the
Court began its analysis by recognizing a long line of cases
establishing that the Sixth Amendment right to counsel
exists “in order to protect the fundamental right to a fair
trial.” Id. at 684-85 (citing Powell v. Alabama, 287 U.S. 45
(1932); Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v.
Wainwright, 372 U.S. 335 (1963)); see also Lockhart v.
Fretwell, 506 U.S. 364, 368 (1993) (reemphasizing same). In
giving meaning to the right to counsel, the Court remained
guided by this “purpose—to ensure a fair trial.” Strickland,
466 U.S. at 686. The two-pronged test articulated by the
Court reflects this concern, requiring that defendant dem-
onstrate (1) deficient performance and (2) prejudice.’ In
order to demonstrate the requisite prejudice, a “defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Jd. at 694. The Court
further defined reasonable probability as “a probability
sufficient to undermine confidence in the outcome.” Jd. In
applying this standard, the Court was mindful of the im-
portance of practical considerations and warned against the

7 Petitioner concedes that counsel’s performance was deficient.
She focuses her argument exclusively on the prejudice prong.

15

mechanistic application of its rule. Id. at 696. The ultimate
focus, it instructed, must be on the fundamental fairness of
the proceeding in question. Jd.

Keeping in mind the Court’s focus and its admonition
against mechanical application, the lower court’s contrary
finding of prejudice justifies the grant of certiorari here.
Straightforward application of the principles underlying the
rule announced in Strickland here should have resulted in
a finding of no prejudice on the ineffective assistance claim
regarding the testimony of Dr. Fisher on cross-examina-
tion. See Fretwell, 506 U.S. at 370 n. 3. This case presents
a situation “in which it would be unjust to characterize the
likelihood of a different outcome as legitimate ‘prejudice.’”
See Williams v. Taylor, 529 U.S. 362, 417 (2000). While no
one decision of the Court appears to have squarely ad-
dressed this issue, the reasoning employed in several of
its opinions suggests that such evidence leads to neither
an unjust nor unfair verdict.

For example, although the instant case is factually dis-
tinct from the situation presented in Nix v. Whiteside, 475
U.S. 157, 175-76 (1986), the precedential value of that case
for this one is clear. In Nix, the Court held that even if a
defendant’s false testimony might have persuaded the jury
to acquit him, it was not fundamentally unfair to conclude
that he was not prejudiced by counsel’s interference with
his intended perjury. See also id. at 186-87 (Blackmun, J.,
concurring) (“To the extent that Whiteside’s claim rests on
the assertion that he would have been acquitted had he
been able to testify falsely, Whiteside claims a right the law
simply does not recognize . . . . Since Whiteside was de-
prived of neither a fair trial nor any of the specific consti-
tutional rights designed to guarantee a fair trial, he has
suffered no prejudice”). As a matter of law, the Court held
that Strickland prejudice could not be established based
upon whether the jury would have been swayed by the
perjured testimony. See Nix, 475 U.S. at 175. Instead, the

16

Nix Court identified the “benchmark” of an ineffective as-
sistance claim as the fairness of the proceeding. Jd. Conse-
quently, the Court’s decision turned on whether the jury’s
verdict was rendered unreliable because they did not get to
hear the perjury. Jd.

Similarly, in Lockhart v. Fretwell, 506 U.S. 364, 369-72
(1993), the Court concluded that, given the overriding
interest in fundamental fairness, the likelihood of a differ-
ent outcome attributable to an incorrect interpretation of
the law should be regarded as a potential “windfall” to the
defendant rather than the legitimate “prejudice” contem-
plated by the Court’s opinion in Strickland. The death
sentence imposed by the state of Arkansas on Fretwell was
based on an aggravating circumstance (murder committed
for pecuniary gain) that duplicated an element of the un-
derlying felony (murder in the course of a robbery). How-
ever, before trial, the United States Court of Appeals for the
Eighth Circuit held that such “double counting” was im-
permissible. See Collins v. Lockhart, 754 F.2d 258, 265 (8"
Cir. 1985), cert. denied, Lockhart v. Collins, 474 U.S. 1013
(1985). Fretwell’s counsel (who, undoubtedly was unaware
of Collins), failed to object to the double counting. Then,
before Fretwell’s claim for federal habeas corpus relief
reached this Court, Collins was overruled.’ Accordingly,
even though the Arkansas trial judge probably would have
sustained a timely objection to the double counting, it had
become clear that the State had a right to rely on the

® See Lowenfield v. Phelps, 484 U.S. 231 (1988), reh’g denied, 485
U.S. 944 (1988) (holding that an aggravating circumstance may
duplicate an element of the capital offense if the class of death-
eligible defendants is sufficiently narrowed by the definition of the
offense itself); see also Perry v. Lockhart, 871 F.2d 1384 (8 Cir.),
reh’g en banc denied, 1989 U.S. App. LEXIS 11036 (1989), and
cert. denied, 493 U.S. 959 (1989) (holding that Lowenfield required
court to overrule Collins).

17

disputed aggravating circumstance. See Williams, 529 U.S.
at 417.

The reasoning employed in both Nix and Fretwell applies
with equal force io the instant case. Here, as in those cases,
the result of the proceeding was rendered neither unreliable
nor fundamentally unfair as a result of the prosecution’s
cross-examination of defense witness, Dr. Fisher. Moreover,
the Sixth Circuit’s contrary finding is akin to the granting
of a “windfall” which the Court’s decisions have disdained.
See Fretwell, 506 U.S. at 369-70 (citing Nix, 475 U.S. at
175).

Like the aforementioned cases, the instant case illus-
trates another factor that ought not to inform the prejudice
inquiry. In this sense, it is analogous to a point addressed
by Justice Powell in his concurrence in Kimmelman v.
Morrison, 477 U.S. 365 (1986). Justice Powell observed that
“the exclusion of illegally seized but wholly reliable evi-
dence renders verdicts less fair and just, because it ‘deflects
the truthfinding process and often frees the guilty.’” Jd. at
396 (Powell, J., concurring) (quoting Stone v. Powell, 428
U.S. 465, 490 (1976)); see also Holman v. Page, 95 F.3d 481,
492 (7" Cir.), reh’g en banc denied, 102 F.3d 872 (1996),
cert. denied, 520 U.S. 1254 (1997) (citing Justice Powell’s
concurrence in Morrison with approval and holding that
under Strickland no prejudice exists when evidence gath-
ered in violation of the Fourth Amendment is erroneously
admitted at trial).

B. The chilling effect of the Sixth Circuit’s concept of
Strickland prejudice

Viewed as a whole, the Court’s decisions illustrate that
“the touchstone of an ineffectiveness claim is the fairness of
the adversary proceeding,” Lockhart v. Fretwell, 506 U.S.
364, 370 (1993), whose “‘premise . . . is that partisan ad-

18

vocacy on both sides of a case will best promote the ultimate
objective that the guilty be convicted and the innocent go
free.’” Evitts v. Lucey, 469 U.S. 387, 394 (1985) (quoting
Herring v. New York, 422 U.S. 853, 862 (1975)).

However, if allowed to stand as correct, the Sixth Circuit’s
view of Strickland prejudice will undermine the advocacy of
state prosecutors and frustrate the ultimate truth seeking
function of a trial. See Nix, 475 U.S. at 174 (“lawyer is an
officer of the court and a key component of a system of
justice, dedicated to a search for truth.”). Simply stated, the
lower court’s decision chills effective cross-examination by
prosecutors. While the Court has held that Strickland’s
prejudice prong does not implicate the same concerns as the
performance prong, such as dampening the ardor or im-
pairing the independence of defense counsel (Fretwell, 506
U.S. at 372), these concerns do implicate Strickland’s preju-
dice prong with regard to the prosecuting attorneys’ conduct
in situations like that presented here.

The Sixth Circuit’s view of prejudice discourages vigorous
cross-examination. In instances where defense counsel
would merely be deficient under Strickland’s first prong
(e.g. for failing to prepare his witness), a vigorous cross-
examination could potentially result in additional incrimi-
nating evidence which, while furthering the truthfinding
function of the trial, could potentially result in sufficient
prejudice under Strickland’s second prong. In this way,
vigorous advocacy would result in elevating what would
ordinarily be a mere deficiency on defense counsel’s part to
constitutionally ineffective assistance of counsel. Thus, if
the Sixth Circuit’s analysis is taken to its logical conclusion,
prosecutors will lack reasonable power, or desire, to test the
truth of a defense or to effectuate the truthfinding function
of a trial. See Nix, 475 U.S. at 185 (Blackmun, J., concur-
ring) (suggesting that the sole ultimate objective of a trial
is a judgment resting on truth).

19

C. No reasonable probability of acquittal on these
facts

The lack of merit of Combs’ prejudice claim should have
been apparent to the Sixth Circuit. Given the overwhelming
evidence of intent and premeditation presented by the
prosecution in this case, it is not “reasonably probable” that
the evidence that Combs suggests should not have been
presented would have resulted in his acquittal. See Pet. at
2-3 (for a detailed description of the evidence of intent and
premeditation). Combs has no valid claim that confidence
in his trial was diminished by Dr. Fisher’s testimony on
cross-examination which further served to establish his
guilt. See Nix v. Whiteside, 475 U.S. 157, 175 (1986). The
Sixth Circuit’s holding simply fails to account for the fact
that no showing was made here that the justice of Combs’
sentence was rendered unreliable by a breakdown in the
adversarial process. Strickland, 466 U.S. at 700.

20
CONCLUSION

For the aforementioned reasons, the amici States respect-
fully urge this Court to grant Warden Margaret A. Bagley’s
Petition for Writ of Certiorari.

Respectfully submitted,

JAMES E. RYAN
Attorney General of Illinois

JOEL D. BERTOCCHI
Solicitor General of Illinois

WILLIAM L. BROWERS

MICHAEL M. GLICK
Counsel of Record

Assistant Attorneys General

100 West Randolph Street

12* Floor

Chicago, Illinois 60601

(312) 814-2232

Counsel for Amici States

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1477%3A4. Public record. Not legal advice.