The N.C. Court of Appeals’ recent decision in State v. Harrison raises an issue that arises with some frequency in N.C. criminal trials: When can the State use evidence of a defendant’s pre- and post-arrest silence at trial? In this post I’ll address that issue.
In Harrison, the defendant was convicted of larceny of a dog. He appealed arguing, in part, that the trial court erred by allowing the State to use his pre- and post-arrest silence as substantive evidence of guilt, violating his constitutional right to remain silent. The defendant pointed to two instances that occurred at trial. First, he noted, when talking about his initial interview of the defendant, a law enforcement officer stated: “So, I continued to interview with him. He provided me – he denied any involvement, wished to give me no statement, written or verbal.” Second, the defendant pointed to the officer’s testimony about the defendant’s arrest. In response to the prosecutor’s question about whether the defendant made any statements after the warrant was served, the officer responded: “After he was mirandized [sic], he waived his rights and provided no further verbal or written statements.”
The court began its analysis by setting out the rules governing the use of a defendant’s pre- and post-arrest silence at trial. It noted that a defendant’s pre-arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of guilt, but may be used to impeach the defendant by suggesting that the defendant’s prior silence is inconsistent with his or her present statements at trial. However, a defendant’s post-arrest, post-Miranda warnings silence may not be used for any purpose.
Applying these rules, the court noted that the defendant testified after the officer so the State could not use the officer’s statement for impeachment. Also, the court noted, the officer’s testimony was admitted as substantive evidence during the State’s case in chief. Thus, it concluded it was error for the trial court to admit both statements.
As noted above, the issue arises with some frequency at trial. See, e.g., State v. Jackson, __ N.C. App. __, 691 S.E.2d 133 (2010) (although the State may use a defendant’s pre-arrest silence for impeachment purposes, once the defendant has been arrested and advised of his or her Miranda rights, use of the defendant’s silence violates the right against self-incrimination); State v. Mendoza, __ N.C. App. __, 698 S.E.2d 170 (2010) (the trial court erred by allowing the State to introduce evidence, during its case in chief, of the defendant’s pre-arrest and post-arrest, pre-Miranda warnings silence). If the issue comes up in one of your cases, here’s a handy chart to keep the rules straight:
| For Impeachment | As Substantive Evidence | |
| Post-Arrest,
Post-Miranda |
May not be used | May not be used |
| Post-Arrest,
No Miranda Warnings Given |
May be used | May not be used |
| Pre-Arrest | May be used | May not be used |
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?
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.
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.