When May the State Use Evidence of a Defendant’s Silence Before Trial?

A couple of weeks ago, I wrote about the prohibition against the State commenting on a defendant’s failure to testify, or, in other words, a defendant’s silence at trial. Such comments are disallowed as they abridge a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence. This post addresses a related issue:  When and how may the State in a criminal trial use evidence of a defendant’s silence before trial to establish a defendant’s guilt or impeach a defendant’s credibility? (This is not the first time we have written about this topic on the blog. Jessie Smith did so here in 2012; nevertheless, a few relevant cases have been decided since then, and I thought it would be helpful to revisit the issue.)

Defendant’s invocation of right to silence may not be used as substantive evidence of guilt.

When a suspect or defendant invokes the privilege against self-incrimination by remaining silent, that silence is protected from prosecutorial comment or substantive use as evidence of guilt — regardless of whether the right is invoked before or after the defendant’s arrest. So held the North Carolina Court of Appeals in State v. Boston, 191 N.C. App. 637 (2008), extending the rule that the North Carolina Supreme Court adopted in State v. Ward, 254 N.C. 231 (2001), barring substantive use of post-arrest silence, to a defendant’s invocation of the right to remain silent even before arrest. See State v. Ward, 254 N.C. 231 (2001) (holding that under the federal and state constitutions, “[a] defendant’s decision to remain silent following his arrest may not be used to infer his guilt, and any comment by the prosecutor on the defendant’s exercise of his right to silence is unconstitutional.”); State v. Boston, 191 N.C. App. 637 (2008) (holding that the Fifth Amendment protects pretrial silence regardless of whether the defendant invokes the right before or after arrest). The Boston Court reasoned that the Fifth Amendment right against self-incrimination does not attach solely upon custodial interrogation; thus, a proper invocation of that right – regardless of when it occurs – should be protected from prosecutorial comment or substantive use so as to secure the right itself.

This rule applies as a matter of constitutional interpretation by North Carolina’s appellate courts; the United States Supreme Court has not weighed in on whether the Fifth Amendment bars the substantive use of a defendant’s invocation of his right to remain silent before the defendant is arrested. Cf. Salinas v. Texas, 570 U.S. 178 (2013) (plurality opinion concluded that the petitioner did not invoke his Fifth Amendment privilege when he failed to respond to one question while answering others posed before and after during a voluntary interview; thus, Court did not resolve division of authority over whether the prosecution may use a defendant’s assertion of the privilege during a noncustodial police interview as part of its case-in-chief). The United States Supreme Court has, however, determined that a defendant’s silence following the issuance of Miranda warnings may not be used against him even for the limited purpose of impeaching an explanation subsequently offered at trial. Doyle v. Ohio, 426 U.S. 610, 618 (1976) (noting that the State did not suggest the defendants’ post-Miranda silence could be used as substantive evidence of guilt).

North Carolina’s appellate courts have deemed the following testimony and arguments to run afoul of the rule prohibiting the use of a defendant’s invocation of his or her Fifth Amendment privilege to prove the defendant’s guilt:

  • Arguments from a prosecutor that “[w]e know [the defendant] could talk, but he decided to just sit quietly. He didn’t want to say anything that would ‘incriminate himself.’ So he appreciated the criminality of his conduct all right,” Ward, 354 N.C. at 266;
  • Testimony from a witness for the State about a defendant’s refusal to “go downtown and answer the police’s questions,” Boston, 191 N.C. App. at 647;
  • Argument from the prosecutor that “don’t you think, when the police were there and polite and nice and trying to get to the truth . . . don’t you think you would tell him then [about the defendant’s alleged belief that he needed to defend himself and the ensuing struggle over gun]?” State v. Hoyle, 325 N.C. 232, 236-37 (1989);
  • Questioning from the prosecutor about the defendant’s failure to meet with the detective and tell his side of the story followed by argument stating: “Why didn’t [Defendant] go and talk to [the detective] when she offered him the opportunity to tell his side of the story?” State v. Adu, 195 N.C. App. 269 (2000);
  • Argument from the prosecutor that “what would be wrong . . . [with] calling up the police . . . and say[ing] ‘let me tell you some more, let me tell you the rest of this?’ He didn’t do that. . . . [A]sk yourself now ‘why on earth would I wait until now to try to tell that story if I had that kind of story?” State v. Shores, 155 N.C. App. 342, 348 (2002); and
  • Testimony from a law enforcement officer during the State’s case-in-chief that the defendant did not say anything when he was arrested and did not explain why he had such a large amount of cash, State v. Mendoza, 206 N.C. App. 391, 396-97 (2010).

Absent governmental coercion, a defendant must invoke the privilege to be protected from substantive use or argument regarding his failure to make pretrial statements. See Salinas, 570 U.S. at 184. Thus, in State v. Taylor, 244 N.C. App. 293 (2015), the court of appeals found no error in the introduction of testimony from a detective about her inability to question the defendant during her investigation, despite leaving messages for him with family members. The Taylor Court reasoned that “pre-arrest silence has no significance if there is no indication that a defendant was questioned by a law enforcement officer and refused to answer.” Id. at 298.

In contrast to the prohibition against using a defendant’s silence as substantive evidence, a defendant’s invocation of his right to silence may, in certain circumstances, be used to impeach a defendant’s testimony.

A defendant’s invocation of the right to silence before Miranda warnings are administered may be used for impeachment.

Whether a defendant’s silence may be used for impeachment depends upon whether the defendant invoked the privilege against self-incrimination before or after Miranda warnings were administered. A defendant’s silence following the issuance of Miranda warnings may not be used against him for any purpose, substantive or impeachment. Doyle v. Ohio, 426 U.S. 610, 619–20 (1976) (holding that 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); see also State v. Moore, 366 N.C. 100, 105 (2012) (trial court erred in admitting testimony from a law enforcement officer that after he read defendant his Miranda rights, defendant “refused to talk about the case at that time” ); cf. Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam) (holding that cross-examining a defendant regarding his silence after arrest but before Miranda warnings are given does not violate due process).

A defendant’s silence before Miranda warnings are given, in contrast, may be used to impeach the testimony of a testifying defendant by suggesting that the defendant’s prior silence is inconsistent with his statements at trial. See Jenkins v. Anderson, 447 U.S. 231, 238 (1980)) (holding that neither Fifth Amendment right to silence nor the Fourteenth Amendment right to due process is violated by use of pre-arrest silence to impeach a defendant’s credibility; noting that impeachment following a defendant’s decision to “cast aside his cloak of silence . . . advances the truth-finding function of a criminal trial”). The Jenkins Court deemed permissible the prosecutor’s questioning of the defendant, who testified that he stabbed the victim in self-defense, about the defendant’s failure to go to the police and the prosecutor’s subsequent argument that the defendant “waited two weeks . . . before he did anything about surrendering himself or reporting [the stabbing] to anybody,” Jenkins, 447 U.S. at 233-34. Jenkins explained that its holding did not force any state court to allow impeachment through the use of prearrest silence and that “[e]ach jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative then prejudicial.” Id. at 240-41.

Under North Carolina common law, a defendant’s pre-Miranda silence qualifies as a prior inconsistent statement admissible for purposes of impeachment if it would have been natural for the defendant to have earlier mentioned to the police a material circumstance included in the defendant’s trial testimony. State v. Lane, 301 N.C. 382, 386 (1980). Courts have concluded that the following instances of pre-Miranda silence satisfy this standard:

  • The defendant’s failure when police confronted him with the alleged co-conspirator’s statement identifying the defendant as the triggerman, to expound upon his statement, “I didn’t shoot anyone,” by adding that the co-conspirator shot the victim, in light of defendant’s testimony that he was acting as police informant at the time of the shooting and that the alleged co-conspirator shot the victim, State v. Buckner, 342 N.C. 198, 224 (1995);
  • The defendant’s failure to tell officers during her daily conversations with them about the conversation she testified to having with an alleged co-conspirator in which that person told her who had killed her husband, State v. Westbrooks, 345 N.C. 43, 64–65 (1996); and
  • The defendant’s failure to mention that he shot two of the victims in self-defense and another by accident in the course of making a number of other spontaneous statements to investigators, State v. Washington, 141 N.C. App. 354, 373 (2000).

A defendant must testify to be impeached. The State may not offer evidence of a defendant’s silence in its case-in-chief in anticipation of the defendant testifying. The North Carolina Supreme Court in State v. Shuler, 378 N.C. 337 (2021), held that the defendant did not forfeit her Fifth Amendment rights when she gave the statutorily required pretrial notice of her intent to raise the affirmative defense of arrest. Thus, the trial court erred when it (1) allowed the State to ask a detective whether Shuler made “any statements” about the man who was with her at the scene when she handed over bags of marijuana and methamphetamine and (2) when it admitted the detective’s response that Shuler made no comment. Id. at 340-41.

If you are interested in reading more about permissible and impermissible jury argument, check out the recently updated chapter on Opening and Closing Arguments in the NC Superior Court Judges’ Benchbook.