Monder Law Group - News
Can My Silence Actually Be Used Against Me In A Criminal Trial?
No. But you have to make sure it isn’t!
Take this common scenario at trial:
The prosecutor cross-examines the defendant about his failure to mention the alibi previously, and argues such a failure in closing argument. The court held the cross-examination and argument are improper because using post-arrest silence against the defendant violates due process. Additionally, if the prosecutor commented on defense counsel not revealing the alibi, it is an “improper disparagement of counsel” and is prejudicial.
California courts have reasoned that the prosecutor’s argument to the jury is unfair because the unstated premise which may be plausible to non-lawyers is that the prosecutor simply would drop all charges because the defense informed the prosecution of the alibi defense. Alternatively, the comments improperly implied defense counsel did not believe the alibi or had participated in its fabrication.
How to Determine If a Violation Took Place:
The first issue is whether the defendant was actually in custody. When it’s a brief and routine traffic stop, the U.S. Supreme Court has held that such a stop doesn’t constitute custody. Although most drivers would not feel free to leave, and the driver’s freedom has been curtailed, the stop is open to the public and not “police dominated.” Police can ask questions (“Have you had anything to drink tonight?”) without first giving Miranda rights, and judges will allow the answers. The answer may be different, however, when the routine stop becomes prolonged, and particularly if scrutiny on the suspect increases. When a person is told he cannot leave, he could reasonably conclude that he’s in police custody—triggering Miranda before any questions should be asked.
This is a dangerous scenario, and courts have tried to prevent this from happening so the police wont abuse this time to delay questioning in order to create an extended post-custody period, and create intervening silence that could be used against the defendant.
If you have any questions feel free to contact San Diego CRIMINAL Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney