For a better experience, click the Compatibility Mode icon above to turn off Compatibility Mode, which is only for viewing older websites.

Note: Silence Isn't Suspicious: Why the Post-Arrest Pre-Miranda Circuit Split Is Unfairly Prejudicial to Suspects With Autism Spectrum Disorder


In 1966, the Supreme Court issued its famous opinion in Miranda v. Arizona. The decision was considered a triumph for criminal suspects at the time. However, the aftermath of Miranda shows a lack of victory for criminal suspects, particularly when it comes to an absence of uniformity amongst circuit courts regarding whether post-arrest, pre-Miranda silence can be used as substantive evidence of guilt in a prosecutor’s case-in-chief. The Supreme Court has denied the circuit courts an answer. In the midst of this confusion, although all criminal suspects may be prejudiced, those with Autism Spectrum Disorder (ASD) are at greater risk. Suspects with ASD may exhibit behaviors and responses, including silence, that are indicative of their disability, not of their guilt.

This Note examines the post-arrest, pre-Miranda circuit split as it relates to suspects with ASD. Ultimately, this Note argues that, for uniformity across the circuit courts, the Supreme Court must grant certiorari on a case with this issue, and affirmatively hold that silence cannot be used as substantive evidence of guilt in a prosecutor’s case-in-chief. This Note also argues that law enforcement agencies must incorporate training programs specifically tailored to ASD. This way, suspects with ASD are more likely to be protected, not punished, when they come face to face with the criminal legal system.