(dissenting).
I respectfully dissent. The State’s use of Borg’s counseled silence violated his due process rights and the Fifth Amendment protection against self-incrimination. The majority’s decision significantly erodes a citizen’s constitutionally protected right to remain silent when questioned by police.
*549The undisputed record establishes that the State improperly commented on Borg’s counseled silence. The prosecutor argued to the jury that Borg’s silence was evidence of guilt — a clear violation of his due process rights. Because evidence of guilt was not overwhelming, the violation was not harmless beyond a reasonable doubt and the case should be remanded for a new trial. I would hold, in the alternative, that commenting on Borg’s silence by his failure to respond to Sergeant Niemeyer’s letter violated the Fifth Amendment protection against self-incrimination.
I.
When this case was tried, everyone involved believed that the State sent Borg a letter as part of its investigation of the incident, to which Borg did not respond, and that Niemeyer then contacted Borg by phone, at which point Borg said that he had spoken to an attorney and would not talk to police. These beliefs were based on statements made by the prosecutor in response to Borg’s motion in limine to prevent Niemeyer from testifying about the letter and phone call. The prosecutor told the court that Borg “was contacted by mail initially and then he was contacted via telephone by the investigator and asked if he would be willing to provide a statement and the defendant indicated that no, he would not.” The court withheld ruling on that motion until trial. At trial, the prosecutor again represented that the letter came before the phone call, telling the court that Niemeyer would testify that “he had contacted [Borg] first by letter and then via phone call and neither time did the defendant indicate ... anything other than silence.” The court’s evidentiary ruling at trial and the arguments on appeal therefore assumed that Borg had not invoked his right to silence on the advice of counsel until after Niemeyer sent the letter.
In reviewing the record on appeal, this court discovered evidence in the district court case file indicating that Borg had invoked his right to counsel via a phone call before Niemeyer sent the letter. The case file contains Niemeyer’s letter to Borg and a report from Niemeyer indicating that Borg had refused to speak to Niemeyer in a phone call made two months before the letter. Borg apparently also noticed this evidence between briefing and oral argument, because he raised the discrepancy at oral argument.
The record indicates that a copy of the police report and Niemeyer’s letter were provided to Borg on December 21, 2004, and were submitted to the district court on November 16, 2005, as part of the State’s response to Borg’s motion to dismiss for lack of probable cause. The police report was used by the prosecutor at trial to refresh Niemeyer’s recollection of his investigation.
We ordered supplemental briefing to address whether, in fact, the phone call came before the letter and if it did, how the analysis might be different. The State did not dispute that the phone call came before the letter,1 but argued that Borg had waived appellate review of the due process issue and that the court should not reach the issue in the interests of justice. Borg argued that the record established that the phone call happened first and that the State’s use of his silence after the phone call violated Minnesota precedent. Based on the supplemental briefing, the majority *550concludes that the record establishes that Niemeyer’s letter to Borg came after the phone call in which Borg told Niemeyer that he had been counseled to remain silent. But the majority chooses not to review the due process claims. I would hold that the interests of justice require us to reach the issue and that the error affected Borg’s substantial rights.
A.
It is a violation of due process in Minnesota to use a criminal defendant’s silence against him at trial when that silence follows the defendant’s invocation of his right to counsel. State v. Billups, 264 N.W.2d 137, 139 (Minn.1978); State v. Dunkel, 466 N.W.2d 425, 428 (Minn.App.1991). In Bill-ups, we held that the use on cross-examination of a defendant’s post-arrest silence on the advice of counsel violated due process. Billups, 264 N.W.2d at 138-39. In Dunkel, the court of appeals extended the reasoning of Billups to hold that the use on cross-examination of a defendant’s pre-Miranda, pre-arrest silence on advice of counsel is constitutionally prohibited. Dunkel, 466 N.W.2d at 428. The inadmissibility of counseled pre-arrest, pre-Mi-randa silence has been treated as settled law. See, e.g., State v. Ford, No. A09-632, 2010 WL 1439364, at *4 (Minn.App. Apr. 13, 2010); State v. Rogers, No. A04-378, 2004 WL 2939667, at *2 (Minn.App. Dec. 21, 2004), rev. denied (Minn. Feb. 23, 2005); State v. Houseman, No. C1-00-2196, 2001 WL 1182698, at *1 (Minn.App. Oct. 9, 2001).
Thus, the State’s introduction of Borg’s silence in response to the letter, sent after Borg had invoked his right to silence on advice of counsel, clearly violated settled due process law. But although the defense strongly objected to the introduction of Borg’s silence on Fifth Amendment grounds, it never objected on due process grounds. Thus, the issue before us is whether in the interests of justice we should address the merits of Borg’s due process claim. I would conclude that the interests of justice compel us to review and correct this error.
The majority relies for its decision not to reach the merits of Borg’s due process claim on State v. Green, 747 N.W.2d 912 (Minn.2008). Its reliance is misplaced. Green does not establish that it is not in the interests of justice to reach unobject-ed-to error when a defendant bears any responsibility for the error, only that reaching an unobjected-to error may not be in the interests of justice when the defendant was more at fault for the error than the State.
In Green, the defendant argued that there was an error in the transcription of a critical statement in his interview with police and that the error was not discovered until after he was convicted. Id. at 917. We analyzed the interests of justice, considering the degree to which each party was responsible for the error and whether some fundamental unfairness to the defendant needed to be addressed. Id. at 918-19. We held that the defendant was more at fault than the State for the admission of the inaccurate transcript into evidence. Id. at 919-20. Although the State was responsible for the inaccurate transcription and for failing to notice that the transcription was inaccurate, the defense, not the State, first referred to the erroneously-transcribed statement, introduced the transcript into evidence and, despite being in the best position to know what the defendant had said during the interview, had not objected to the erroneous statement or disputed the transcript’s accuracy. Id. at 919. We held that the district court had not abused its discretion by refusing to grant a new trial in the interests of justice.
*551This is a very different case from Green. Here, the State, not Borg, introduced the error, both at the motions in limine hearing and at trial. Both the State and Borg had access to the police report and letter, but only the State is on the record as having actively used the police report at trial — to refresh Niemeyer’s recollection while he testified as to dates and other details of his investigation. There is no indication in the record that Borg was in a better position to know the correct order of events than the State. Borg testified that he never received the letter, and thus had no firsthand knowledge of when the letter was sent. The State’s witness was in the best position to know when he called Borg and when he sent the letter. Also in contrast to Green, the erroneous facts were relied upon entirely by the State. In short, the only responsibility Borg bears for the error was not noticing that a police report contradicted a statement made by the prosecutor. The State, however, was responsible not only for the same mistake Borg made but also for making the erroneous statement, introducing evidence of Borg’s silence based on the incorrect order of events, using at trial the police report that directly contradicted the prosecutor’s statement, and calling a witness who was in the best position to contradict the prosecutor’s stated order of events. A proper application of the balancing test used in Green indicates that the State was more at fault for the error than was Borg.
The majority replaces the balancing-of-faults approach used in Green with an approach that finds that the interests of justice do not require the court to address an error for the first time on appeal if the party claiming the error bore any fault for the error. The majority does not conclude that Borg was more at fault for the error than was the State; it concludes that Borg had an opportunity to object to or correct the prosecutor’s misstatement but did not, and so missed his chance. This is an unprecedented application of the interests-of-justice analysis — under such a standard, no unobjected-to error would ever merit review in the interests of justice.
I would hold that the due process issue needs to be addressed to avoid the fundamental unfairness of convicting a defendant in direct violation of his counseled right to remain silent.
B.
Issues that were not raised at trial are evaluated according to the plain error standard. See State v. Jones, 753 N.W.2d 677, 686 (Minn.2008). Plain error is (1) error (2) that is plain and (3) affects the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). An error is plain if it is clear or obvious. State v. Strommen, 648 N.W.2d 681, 688 (Minn.2002). An error affects substantial rights if “the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 744. If the three prongs are met, “the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” Id. at 740.
The prosecutor’s introduction of testimony of Borg’s silence and comment on Borg’s silence was error that was plain because it relied on a misstatement of fact and because it led to the introduction of evidence that otherwise would have been impermissible. See State v. Young, 710 N.W.2d 272, 281 (Minn.2006) (holding that a prosecutor’s misstatement of a date during closing argument made the prosecutor’s argument implausible and was therefore plain error). The remaining question is therefore whether that error affected Borg’s substantial rights.
“An error affects substantial rights if it is prejudicial and affect[s] the outcome of *552the case.” State v. Schlienz, 774 N.W.2d 361, 366 (Minn.2009) (internal quotation omitted). A plain error prejudices a defendant’s substantial rights if “there is a reasonable likelihood that the error had a significant effect on the jury’s verdict.” State v. Cao, 788 N.W.2d 710, 717 (Minn. 2010) (citing Griller, 583 N.W.2d at 741). “On review, we consider the strength of evidence against the defendant, the pervasiveness of improper suggestions, and whether the defendant had an opportunity to (or made efforts to) rebut the improper suggestions.” Id. This is essentially the same as a harmless-error analysis. State v. Reed, 737 N.W.2d 572, 584 n. 4 (Minn.2007) (“[A] plain error analysis includes the equivalent of a harmless error inquiry in its third factor.”). In cases alleging prosecutorial misconduct that is plain, the State bears the burden of showing lack of prejudice. State v. Ramey, 721 N.W.2d 294, 299-300 (Minn.2006).
The evidence of guilt in this case was not strong. There was no physical evidence inconsistent with Borg’s claim that the intercourse was consensual. The witnesses testified to conflicting versions of the events. Most witnesses had gaps in their memories as a result of the four years between the incident and trial. Two of the State’s witnesses were actually in the room when the intercourse happened. But neither testified that they thought the intercourse was non-consensual. They testified that they did not think M.W. was asleep during the incident, and that they did not attempt to interrupt Borg and M.W.
It is against this close set of facts that the prosecution introduced evidence of Borg’s silence against him. In its case-in-chief, the State introduced testimony by Sergeant Niemeyer that he had talked to everyone at the scene of the incident except Borg, and had sent Borg a letter but received no response. In closing argument, the prosecutor argued to the jury that Borg’s silence indicated guilt:
When law enforcement contacted [Borg] by phone and mail, he didn’t say, “Hey, I don’t understand what’s going on here with you — with these questions. This was a consensual situation.” He never said that.... [W]hen he found out later that day what the report was from [M.W.], he never called the police to say, “Hey, whoa, I wanna make sure everybody’s clear on this, this is a consensual situation”.... He did none of those things. And you get to ask yourself based on your common sense and experience whether those are the actions of somebody who believes that they have done nothing wrong.
In a case this close, it is more than reasonably likely that the State’s use of Borg’s silence as evidence of his guilt affected the jury’s verdict.
The final inquiry in the plain-error analysis is whether the error should be addressed “to ensure fairness and integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740. In this case, the prosecution and the defense both failed to identify the correct facts needed to properly inform the court, and the court did not notice the correct facts on its own. The integrity and fairness of the judicial system is served by correcting errors that lead the court2 and jury to different decisions than they would have reached given the correct facts. I would therefore conclude that the prosecutor plainly erred by commenting on Borg’s *553counseled, pre-arrest, pr e-Miranda silence.
II.
I would hold in the alternative that the State’s introduction in its case-in-chief of Borg’s silence in response to Niemeyer’s letter was prohibited by the Self-Incrimination Clause of the Fifth Amendment.
A.
“No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The Fifth Amendment right against self-incrimination not only guarantees the accused the right to remain silent during a criminal trial, but also prevents the prosecution from commenting on the silence of a defendant who exercises his right not to testify at trial. Griffin v. California, 380 U.S. 609, 613-15, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Prosecutorial comment on a defendant’s choice not to testify penalizes the exercise of a constitutional privilege by “making its assertion costly.” Id. at 614, 85 S.Ct. 1229. Nor may the State comment at trial on a defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Comment on a defendant’s silence after he has been read the Miranda warnings violates due process because it would be fundamentally unfair to tell a suspect that he has the right to remain silent then penalize him for exercising that right. Id. at 617-18, 96 S.Ct. 2240; see also State v. Dobbins, 725 N.W.2d 492, 509-10 (Minn. 2006).
The question presented in this case is one that neither our court nor the Supreme Court has addressed: whether the Fifth Amendment permits the State to introduce evidence in its case-in-chief of a defendant’s pre-arrest, pr e-Miranda silence in response to government questioning. Until now, the universal answer to that question has been “no.” Every other state high court and federal appellate court faced with this issue has held that the Fifth Amendment prohibits such use. The United States Courts of Appeals for the First, Sixth, Seventh, and Tenth Circuit and high courts in Idaho, Maryland, Massachusetts, New Hampshire, Nebraska, Ohio, Washington, Wisconsin, and Wyoming have all held that the introduction in the prosecution’s case-in-chief of a defendant’s pre-arrest silence in response to government questioning violates the Fifth Amendment.3 I would join these jurisdic*554tions and adopt the rule of law that the Fifth Amendment’s protection against self-incrimination prohibits the State from introducing in its case-in-chief evidence of a defendant’s silence in response to government questioning.
The majority, citing Justice Stevens’ concurrence in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), holds that the Fifth Amendment Self-Incrimination Clause does not apply “when a defendant’s silence is not compelled by the government.” Op. at 543. I would not interpret the protections of the Fifth Amendment so narrowly.
Although the majority cites cases out of the Fifth, Eighth, and Ninth circuits that adopted the approach advocated by Justice Stevens in his concurrence in Jenkins, none of those cases involved questioning by government agents.4 And even Jenkins itself did not involve government questioning.
In Jenkins, the defendant, accused of first-degree murder for a stabbing, took the stand and testified that the stabbing was in self-defense. Jenkins, 447 U.S. at 232-33, 100 S.Ct. 2124. To impeach Jenkins’ credibility, the state introduced evidence that Jenkins had waited two weeks before going to the police with his self-defense story. Id. at 233-34, 100 S.Ct. 2124. The Supreme Court held that the use of a defendant’s pre-arrest silence to impeach his credibility did not violate the Fifth Amendment protection against self-incrimination because “impeachment follows the defendant’s own decision to cast aside his cloak of silence.” Id. at 238, 100 S.Ct. 2124. It also held that the Due Process Clause of the Fourteenth Amendment did not bar use of Jenkins’ pre-arrest silence against him for the purposes of impeachment because his silence was not induced by government action. Id. at 240, 100 S.Ct. 2124.
Justice Stevens, in a concurring opinion, wrote that he would have rejected the Fifth Amendment claims because “the privilege against compulsory self-inerimi-nation is simply irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak.” Id. at 241, 100 S.Ct. 2124 (Stevens, J., concurring). But Justice Stevens’ opinion is clearly tied to the facts of that case, in which the defendant’s silence came before any contact with the police. As Justice Stevens wrote in his concurrence, “[t]he *555fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police.” Id. at 243, 100 S.Ct. 2124 (emphasis added). Justice Stevens’ concurrence thus has no applicability to the facts of this case, in which Borg was questioned after he had contact with the police.
The majority’s narrow reading of the Fifth Amendment is at odds with Supreme Court precedent. The Fifth Amendment protection against self-incrimination “must be accorded liberal construction in favor of the right it was intended to secure.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The privilege “can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The protection applies when “the witness has reasonable cause to apprehend danger from a direct answer.” Hoffman, 341 U.S. at 486, 71 S.Ct. 814. “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Id. at 486-87, 71 S.Ct. 814; see Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.1989) (“[T]he application of the privilege is not limited to persons in custody or charged with a crime.”); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987) (“The right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings.”).
To hold that the Fifth Amendment is limited to people in custody or charged with a crime would “substantially impair the policies behind the privilege” against self-incrimination. See Coppola, 878 F.2d at 1564-65. The privilege
reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load”; our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life”; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty”, is often “a protection to the innocent.”
Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) (citations omitted). These values and aspirations are not served by allowing the State to question a defendant and then use either his response or lack of response against him.
Even if I agreed with the majority that only silence in the face of compulsion5 *556receives Fifth Amendment protection, I would hold that Borg’s lack of response to Niemeyer’s letter was protected.
Any time an individual is questioned by the police, that individual is compelled to do one of two things — either speak or remain silent. If both a person’s prear-rest speech and silence may be used against that person, as the state suggests, that person has no choice that will prevent self-incrimination. This is a veritable “Catch-22.”
State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703, 711 (1982). Allowing comment on a defendant’s silence in response to government questioning subjects the defendant to the “cruel trilemma of self-accusation, perjury, or contempt,” Murphy, 378 U.S. at 55, 84 S.Ct. 1594, and puts a potential defendant under substantial pressure to waive the privilege. See Combs, 205 F.3d at 285. “After all, the only means of compelling a person to incriminate himself is to penalize him if he does not.” Jenkins, 447 U.S. at 250 n. 4, 100 S.Ct. 2124 (Marshall, J., dissenting). Penalizing a defendant’s silence in response to government questioning by allowing the use of that silence as part of the State’s case-in-chief against the defendant is compulsion that meets Justice Stevens’ test from his Jenkins concurrence.
A rule that allows the government to comment at trial on a defendant’s pre-arrest, pr e-Miranda silence creates a situation ripe for abuse. Triggering the Fifth Amendment protections based on the timing of Miranda warnings creates an incentive for police to manipulate the timing of arrest and the reading of the Miranda warnings to maximize the evidence against the defendant. Until the police choose to read a suspect his Miranda rights, the suspect cannot avoid giving the police evidence against him — the choice is either to give the police evidence by answering their questions or give them “powerful and persuasive evidence” of guilt by refusing to answer their questions. United States v. Velarde-Gomez, 269 F.3d 1023, 1032 (9th Cir.2001). The majority’s decision opens the door to allowing the State to manufacture evidence against suspects.
B.
Because I would hold that a defendant’s pre-arrest, pr e-Miranda silence in response to government questioning may not be used against him at trial in the State’s case-in-chief, I also address whether Niemeyer’s letter to Borg constituted government questioning. I would hold that it did.
Niemeyer’s first contact with Borg was by phone on May 18, 2004. During that phone call, Borg told Niemeyer “that [Borg] had spoken with an attorney from Little Falls, MN and would not speak with [Niemeyer].” On July 21, 2004, Niemeyer *557drafted a letter to Borg. The body of the letter read:
I would like to speak with you regarding an investigation that I am conducting. When I spoke with you briefly in May, 2004, you indicated that you had hired an attorney to represent you.
Please have your attorney contact me as soon as possible to arrange an interview appointment. Thank you very much.
Although the text of the letter did not directly ask any questions, the letter was clearly intended to elicit a response in which Borg would have had to speak to the police. It asked Borg to “arrange an interview appointment” — the purpose of which could only have been to ask Borg questions. Although Niemeyer knew that Borg had obtained representation by an attorney and had refused to speak with the police, Niemeyer sent a letter asking for an interview. Under these circumstances, I would hold that the letter constituted questioning.
C.
An appellate court will not reverse a conviction based on erroneous admission of evidence if the error was harmless. Because I would hold that the admission of Borg’s silence in response to the letter violated his Fifth Amendment rights, I would also reach the question of whether the error was harmless.
“Before a Federal constitutional error can be held harmless, the court must be able to declare a belief that it is harmless beyond a reasonable doubt.” State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747 (1973). “An error is harmless beyond a reasonable doubt ‘[i]f the verdict actually rendered was surely unattributable to the error.’ ” State v. Roman Nose, 649 N.W.2d 815, 827 (Minn.2002) (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn.1996)). The inquiry is not “whether a jury would have convicted the defendant without the error, [but] whether the error reasonably could have impacted upon the jury’s decision.” State v. Juarez, 572, N.W.2d 286, 292 (Minn.1997). This requires the appellate court to “examine[] the record as a whole and consider[] the strength of the state’s evidence and the weakness of any defense evidence.” Roman Nose, 649 N.W.2d at 827 (citing State v. Van Wagner, 504 N.W.2d 746, 749 (Minn.1993)).
As discussed above, the evidence in this case was exceptionally close. The verdict in this case was not surely unattributable to the erroneously admitted testimony of Borg’s silence. Under close facts, Niem-eyer’s statement, although a small part of the case, cannot be ruled out as a factor on which the jury relied in making its decision. I would therefore hold that any error in admitting testimony about Borg’s pre-arrest silence was not harmless beyond a reasonable doubt.
III.
In conclusion, I would hold that the State’s use of Borg’s silence against him violated both due process and the Fifth Amendment Self-Incrimination Clause and would remand to the district court for a new trial.
. In its supplemental brief, the State argued that the existence of the letter and police report in the record established a "conflict” between the prosecutor's statement and the record. The State's brief did not, however, claim that the letter and police report were inaccurate.
. The district court ruled that it would have been improper for the State to comment on the phone call because Borg invoked his right to counsel during that call. It clearly would have ruled that testimony about the letter was also inadmissible had it known that the silence in response to the letter was also on the advice of counsel.
. See Combs v. Coyle, 205 F.3d 269, 284 (6th Cir.2000); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.1989); United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.1987); State v. Moore, 131 Idaho 814, 965 P.2d 174, 180-81 (1998); Weitzel v. State, 384 Md. 451, 863 A.2d 999, 1004-05 (2004); Commonwealth v. Thompson, 431 Mass. 108, 725 N.E.2d 556, 565 (2000); State v. Rowland, 234 Neb. 846, 452 N.W.2d 758, 763 (1990); State v. Remick, 149 N.H. 745, 829 A.2d 1079, 1081 (2003); State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, 342 (2004); State v. Easter, 130 Wash.2d 228, 922 P.2d 1285, 1290, 1292 (1996); State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703, 711 (1982); Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995).
The Fourth and Eleventh Circuits have held the use of pre-arrest silence in the government's case-in-chief to be constitutionally permissible, without examining the Fifth Amendment question. See United States v. Rivera, 944 F.2d 1563 (11th Cir.1991); United States v. Love, 767 F.2d 1052 (4th Cir.1985). These cases erroneously applied Supreme Court precedent and merit no persuasive value in this case. Rivera cited Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), for the proposition that "[t]he government may comment on a defendant’s silence if it occurred prior to the time that he is arrested and given his Miranda warnings” without also noting that Jenkins was limited to the use of statements for impeachment. See Rivera, 944 F.2d at 1567-68 (citing Jenkins, 447 U.S. 231, 100 S.Ct. 2124). Love *554based its holding on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), but ignored the fact that both were impeachment cases. See 767 F.2d at 1063; see also Christopher Macchia-roli, To Speak or Not to Speak: Can Pre-Miranda Silence Be Used as Substantive Evidence of Guilt?, 33 Champion 14, 19 (Mar. 2009) ("Love and Rivera misinterpreted Fletcher as admitting post-arrest, pre-Miranda silence in all circumstances and not just for impeachment. ”).
. See United States v. Frazier, 408 F.3d 1102, 1111 (8th Cir.2005) (noting, about a defendant who remained silent when told when he was being arrested, that it was “not as if Frazier refused to answer questions in the face of interrogation”); United States v. Oplinger, 150 F.3d 1061, 1067 (9th Cir.1998) (finding no Fifth Amendment or due process violation in testimony of the defendant's silence in response to questioning by his non-government employers), overruled on other grounds, United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir.2010) (per curiam); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996) (noting that “the record makes manifest that the silence at issue was neither induced by nor a response to any action by a government agent”); see also United States v. Giese, 597 F.2d 1170, 1196-97 (9th Cir.1979) (holding that reasons for prohibiting the use of post-Miranda statements "did not apply to the non-custodial, preindictment meeting” between the defendant and two non-government attorneys).
. I use the phrase “silence in the face of compulsion" instead of "compelled silence” because the State rarely if ever compels silence from a criminal suspect. Quite the op*556posite. The State expends considerable effort, influence, and expertise in attempts to convince suspects to talk to the police. Thus, I interpret the majority's rule of law not as holding that the introduction of a defendant's silence in the State’s case-in-chief is only prohibited when the Slate compelled the defendant to remain silent, but as a holding that the introduction of evidence of a defendant’s silence in the State's case-in-chief is only prohibited when the defendant remained silent under circumstances that would have compelled the defendant to speak.
Restating the majority’s holding in this way highlights an inherent conflict. To "compel” is to "drive or urge with force, or irresistibly; to constrain; oblige; necessitate, whether by physical or moral force.” Webster’s New International Dictionary 544 (2d ed.1934). In other words, the majority seems to hold that if a defendant is faced with irresistible forces that make it necessary for him to speak, but somehow remains silent anyway, then that silence may not be used against him. The Fifth Amendment does not require such Herculean feats of ordinary humans.