Wednesday, February 15, 2017

Officer Testimony about Defendant’s Refusal to Speak not a Reversible Error

An arresting officer's mention at trial of a defendant's refusal to answer questions during the investigation is not inherently a reversible error

State v. Neilson, 2017 UT App 7.

The Utah Court of Appeals found that a trial court did not commit error requiring a mistrial after an officer gave testimony about the defendant’s unwillingness to speak during an investigation. After being arrested and charged with several sex crimes against a minor, the defendant was contacted by his arresting officer as part of the investigation. The defendant exercised his Fifth Amendment rights and refused to speak to the officer further about his charges. During the trial, the prosecutor elicited testimony from the officer of the contact he had with the defendant. In this line of questioning, the officer testified that the defendant refused to speak with him. After receiving that answer, the prosecutor moved on in his questioning without mentioning the defendant’s silence. The prosecutor did not emphasize this incident and the trial court provided a curative instruction to prevent the jury from drawing a “negative inference” from the “isolated statement.” The Court of Appeals further noted that the defendant failed to establish that the incident “so likely influenced the jury that [he] cannot be said to have had a fair trial.” The trial court’s ruling was affirmed.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Neilson20170112.pdf

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