State v. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence be Admissible During the State's Case-in-Chief as Substantive Evidence of Guilt?
Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the states. As a result, The Maine Supreme Judicial Court, like many courts across the United States, has struggled to qualify exactly how Maine’s codification of the Fifth Amendment applies outside of the courtroom. Specifically, the Supreme Court has never addressed the issue of whether pre-arrest, pre-Miranda silence can be used during the prosecution’s case-in-chief as evidence of consciousness of guilt in a criminal trial. Further, the circuit courts that have addressed the issue are split. As a result, jurisdiction have been forced to fashion their own rules regarding the admissibility of the pre-arrest, pre-Miranda silence as evidence of consciousness of guilt. It was against backdrop that the Law Court decided State v. Lovejoy. The purpose of this case note is to analyze Lovejoy and how it fits into the existing body of case law regarding pre-arrest statements and their admissibility in court. Part II of this note briefly discusses the scope of the Fifth Amendment to held elucidate the rationale behind courts’ decisions to either admit or exclude pre-arrest, pre-Miranda testimony at trial. Part III of this note discusses Lovejoy in some detail, explaining the facts, procedural posture, and holding of the case, including a detailed analysis of the Court’s reasoning and the precedent upon which it relied. Part IV discusses how other courts have addressed the admissibility of pre-arrest, pre-Miranda silence. Finally, Part V argues that the Court’s ruling in Lovejoy is the correct interpretation of the Fifth Amendment and article 1, section 6 of the Maine Constitution as it applies to pre-arrest, pre-Miranda silence, as any comment on a defendant’s pre-arrest, pre-Miranda decision to remain silent implicates the Fifth Amendment, has minimal probative value, and should be precluded by a logical extension of the Griffin Penalty doctrine.