References to the Defendant’s Assertion of Miranda Rights

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Sometimes the state wants to introduce evidence that the defendant invoked his right to remain silent or his right to counsel under Miranda. If the prosecution’s purpose is simply to imply the defendant’s guilt, we know that’s improper from Miranda itself: “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436 (1966).

But the state may argue that the circumstances of a particular case justify the introduction of evidence about the defendant’s assertion of his Miranda rights. For example, if a defendant testifies to an exculpatory version of events, the state may wish to ask him why, if his trial testimony is true, he didn’t tell officers his exculpatory version of events. Or, the state may want to establish that the investigating officer was thorough and left no stone unturned. (“Officer, did you ask the defendant for his version of events?” “Yes, I did, but he asserted his constitutional right to remain silent so we pursued other avenues of investigation.”) Similarly, the state may want to explain how it came to get a partial statement from a defendant. (“The defendant admitted that he got into a fight with the victim.” “But did he admit that he stabbed the victim during the fight?” “No. When I asked whether he stabbed the victim, he said he would prefer to remain silent.”)

I’ve had several recent questions about this issue, so I thought I’d take some time to put together a blog post about it.

First, the fact that a defendant testifies to an exculpatory version of events at trial, but asserted his Miranda rights rather than telling officers the same story during the investigation of the case, does not allow the state to cross-examine the defendant about his assertion of his rights. Doyle v. Ohio, 426 U.S. 610 (1976) (defendants refused to speak with the investigating officers after being read their Miranda rights; they later testified that they had been framed for the charges against them; the prosecutor cross-examined them about their failure to tell the officers that they’d been framed; convictions reversed because “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment”; Miranda warnings contained an implicit promise that the assertion of the right to silence or counsel will not be penalized); State v. Shores, 155 N.C. App. 342 (2002) (murder defendant testified that he acted in self-defense; prosecutor repeatedly asked him whether he had told his version of events to officers, and argued in closing that if he truly had acted in self-defense, he would have told officers about it; conviction reversed because prosecutor used the defendant’s post-Miranda silence against him).

Second, when a defendant initially agrees to talk to the police, but asserts his Miranda rights before the interview or interrogation is complete, it is probably permissible for an officer to explain in general terms how the interview ended. (“The defendant chose to end the interview.” Or, “the defendant told us he didn’t want to talk to us anymore.”) Otherwise, the state would be forced to introduce only a fragment of a conversation, and the jury would be left to speculate about how and why the interview ended. However, the officer probably should not refer specifically to the defendant’s assertion of his Miranda rights. (“The defendant said that he was going to assert his right to silence under Miranda because he didn’t want to incriminate himself.”) See United States v. Andujar-Basco, 488 F.3d 549 (1st Cir. 2007) (collecting cases and drawing this distinction). As an aside, if a defendant agrees to talk to police, then later testifies at trial in a way that differs from his earlier statement, it is permissible for the prosecutor to cross-examine the defendant about anything he omitted from his earlier statement. See, e.g., State v. Ezell, 182 N.C. App. 417 (2007).

Third, a defendant may open the door to the introduction of evidence about his assertion of his Miranda rights if he testifies that he was not given an opportunity to speak to officers or that he gave them an exculpatory statement. See Doyle, supra (“[T]he fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.”); United States v. Reveles, 190 F.3d 678 (5th Cir. 1999) (cross-examination of defendant regarding his post-arrest silence permissible because offered to rebut defendant’s claim that he had been willing to cooperate).

Fourth, even if the state improperly introduces evidence of a defendant’s assertion of his Miranda rights, a mistrial (if the error is noticed during the trial) or a reversal of a conviction (if the issue is raised on appeal) is not automatic. Whether any relief is required depends on whether the reference is brief or extensive; whether it took place in response to a question from defense counsel or in response to a question from a prosecutor; and whether it is mentioned by the prosecutor in closing argument. See, e.g., State v. Freeland, 316 N.C. 13 (1986) (officer’s testimony that defendant asserted his right to silence post-Miranda was improper but harmless given that the prosecutor did not intentionally elicit it and did not try to capitalize on it, and that the evidence of the defendant’s guilt was overwhelming; court notes that pre-arrest silence may properly be used for impeachment); State v. Erickson, 181 N.C. App. 479 (2007) (mistrial properly denied where officer testified “[the defendant] asked for a lawyer” while explaining, on cross-examination, why he had been unable to pursue a particular avenue of investigation; the testimony was neither elicited by the prosecutor nor used in the prosecutor’s argument to the jury; it was an offhand remark not intended as a comment on the defendant’s assertion of his rights); State v. Christian, 180 N.C. App. 621 (2006).

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