Franklin v. Duncan

United States Court of Appeals for the Ninth Circuit · 1995 · Evidence

70 F.3d 75 (9th Cir. 1995)

Updated August 22, 2026

EvidenceFifth Amendmentpost-Miranda silenceadoptive admissionshabeas corpusright to remain silentadoptive admissionjury instruction

Facts

At Franklin's state trial, the prosecutor emphasized Franklin's response when officers sought to question him about a homicide and, more centrally, his failure to deny his daughter's accusation during a jail visit after his arrest. In closing argument, the prosecutor repeatedly urged the jury to treat Franklin's silence and limited responses as proof of guilt, arguing that an innocent person would have denied the accusation. The trial court also instructed the jury that if Franklin heard and understood an accusation and failed to deny it under circumstances affording an opportunity to reply, his silence could be considered as indicating an admission that the accusation was true. The court of appeals characterized the silence at issue as Franklin's post-Miranda silence.

Issue

Whether the prosecutor's comments on Franklin's post-Miranda silence, combined with a jury instruction allowing the jury to treat that silence as an adoptive admission, violated Franklin's Fifth Amendment right to remain silent and required habeas relief. Also, whether that error had a substantial and injurious effect or influence on the jury's verdict.

Rule

A defendant's post-Miranda silence may not be used against him as substantive evidence of guilt through prosecutorial comment or an adoptive-admission instruction. On federal habeas review, such constitutional error warrants relief if it had a substantial and injurious effect or influence on the jury's verdict.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, police arrested Leo Martin for arson, advised him of his Miranda rights, and placed him in jail. During a recorded visit, Leo’s brother said, "You set that warehouse fire," and Leo stared at the floor without responding. At trial, the prosecutor argued that an innocent person would have denied the accusation, but the judge gave no adoptive-admission instruction.

Under the governing rule, was the prosecutor’s argument proper?

Explanation. The majority opinion condemns prosecutorial comment using a defendant’s post-Miranda silence as substantive evidence of guilt. The constitutional problem does not depend on an adoptive-admission instruction also being given, although the instruction can reinforce the error. Nor does it matter that the accusation came from a relative rather than directly from police. The key point is that the state used post-Miranda silence against the defendant.