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

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


May not be used May not be used

No Miranda

Warnings Given

May be used May not be used
Pre-Arrest May be used May not be used