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

Prosecutor’s Remarks on Defendant’s Silence Requires Reversal

Although the prosecutor never remarked that a defendant’s silence implied anything during trial, any reference to a defendant’s silence is enough to require reversal

State v. A. M., 2016 BL 429804, Conn., No. SC 19497, 12/23/16.

The Connecticut Supreme Court held that any comments made by the state during a trial that reference a defendant’s silence during the trial proceedings is sufficient to trigger a reversal. During the closing argument, the prosecutor mentioned twice that the defendant had a constitutional right to remain silent, but that the jury could judge his credibility through statements made before the trial. The court reasoned that any comment on the defendant’s silence, even referencing the right to remain silent, can improperly draw the jury’s attention to the defendant’s decision to not take the stand. Moreover, there was a state statute that expressly prohibited prosecutors from commenting on a defendant’s refusal to testify at trial.

The state defended the error by arguing that it was harmless. The court rejected the argument because the case hinged on the defendant’s credibility, which was implicitly called into question by the reference to his silence at trial.

https://www.bloomberglaw.com/public/desktop/document/State_v_A_M_No_SC_19497_2016_BL_429804_Conn_Dec_23_2016_Court_Opi?1485364268

“I Don’t Want to Talk No More” Unambiguous Invocation to Remain Silent

Police were in error and violated the suspect’s right to remain silent when they continued questioning him after he said “I don’t want to talk no more, man” 

Jones v. Harrington, 2016 BL 235726, 9th Cir., No. 13-56360, 7/22/16.

The Ninth Circuit overruled a Californian appellate court that initially found that a suspect did not invoke his right to remain silent because after saying “I don’t want to talk no more, man,” he quickly followed up by stating “You don’t want to hear what I’m telling you.” The Californian court held that the initial refusal to talk, in the context of the entire conversation, was only him expressing his frustration, not an invocation of the right to remain silent.

The circuit court, however, disagreed. The court held that the Californian court erred because responses by a suspect after their invocation of the right to remain silent cannot be relied on to establish whether the invocation was ambiguous or not. The Ninth Circuit relied on Smith v. Illinois, which held “once a suspect clearly invokes his right to counsel, officers may not continue to question him and use his answers to those questions to cast retrospective doubt on the clarity of his initial invocation.”

http://www.bloomberglaw.com/public/document/Jones_v_Harrington_No_1356360_2016_BL_235726_9th_Cir_Aug_31_2015_