Comments on: Use of a Defendant’s Pre- and Post-Arrest Silence at Trial

By: Dan Blau

Dan Blau — Tue, 14 Feb 2012 17:58:35 +0000

I represented the Defendant in this appeal. One interesting thing that came up in this case was that the State argued that introduction of this evidence did not violate D’s rights because he had not clearly and unequivocally invoked his right to remain silent under Berghuis v. Thompkins. I argued that the State conflated two lines of cases. The first involves defendants who try to suppress statements they made during custodial interrogation, in which case Berghuis controls. The second involves situations where the prosecution uses the defendant’s non-custodial refusal to speak with police as substantive evidence of his guilt, in which case Mendoza and State v. Boston, 191 N.C. App. 637 (2008), controls. The COA (correctly) used the Mendoza/Boston framework in this case, and did not require that a defendant clearly and unequivocally invoke his right to remain silent in these situations. COA did not find plain error, though, and affirmed. I don’t think the COA has ever reversed a conviction on these grounds yet. I’m also not sure that the issue has ever been preserved at trial.

By: Rich Costanza

Rich Costanza — Mon, 13 Feb 2012 21:22:19 +0000

In the “for what it’s worth catagory,” I would say the defense attorney kicked the door wide open for you to bring out the reason why the officer did not ask any questions of the defendant. Of course, you’d be better served approaching the bench and asking permission from the judge before traveling down this path.

By: Prosecutor

Prosecutor — Mon, 13 Feb 2012 16:59:53 +0000

What about post-Miranda silence allowed under curative admission (“opening the door”)? It happened to me in a recent trial where the defendant was Mirandized, and refused to give a statement. On direct, my officer makes no mention of it. On cross, the defense attorney asks the officer if he ever asked the defendant about whether a piece of evidence belonged to him. The officer answered, “no,” but did not explain that the reason why is because the defendant did not waive his rights. (Defendant was in custody for an outstanding warrant long before officers found the contraband.) I decided to let that one slide and not pursue the issue further, but would the fact that the defendant opened the door to his post-arrest, post-Miranda silence coming into evidence to explain why the officer did not ask him any questions?