Should I Remain Silent And Talk With A Lawyer Before Or During Arrest? Pennsylvania Supreme Court Rules Pre-Arrest Silence May Not Be Used As Substantive Evidence Of Guilt At Trial
Criminal defendants are afforded a wide variety of protections under both the United States Constitution as well as the Pennsylvania Constitution. The Fifth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution confer a right against self-incrimination. For example, a criminal defendant has an absolute right to remain silent and to not present evidence at trial, and that prosecutors cannot comment on a defendant’s refusal to testify.
There are four distinct time periods during which a defendant may volunteer a statement or remain silent: (1) before arrest; (2) after arrest but before the warnings required by Miranda have been given; (3) after Miranda warnings have been given; and (4) at trial.
At trial, the absolute right to remain silent may not be commented on by the prosecution when a defendant elects to refrain from testifying. Nor may the prosecution comment on pre-trial silence after Miranda warnings have been given. Once a defendant takes the stand to testify at trial, the analysis dramatically changes because the defendant has cast aside the cloak of immunity. The prosecution may impeach a testifying defendant with prior statements or silence, regardless of whether the statements or silence occurred prior to or after a reading of Miranda rights or the defendant’s arrest.
The question of a defendant’s silence before arrest being used at trial as proof of guilt when a defendant does not testify had not been examined in Pennsylvania until late 2014. In Commonwealth v. Molina, the defendant was accused of murder and elected to remain silent at trial. The defendant had been contacted by detectives before being arrested, but did not make a statement. At trial, the prosecution persuaded the jury this silence was an indication of guilt, and he was convicted.
On appeal, the Supreme Court of Pennsylvania walked through the history of an accused’s right to remain silent, noting how important it is and that encroachments on this right would force an accused to choose between confessing, perjuring themselves, or remaining silent where that silence can be used at trial to infer guilt. Furthermore, a defendant may chose to remain silent for any number of reasons and the decision is insolubly ambiguous. To allow reference to a defendant’s silence as evidence of guilt would endanger the truth-determining process, and is impermissible at trial. Accordingly, the defendant’s judgement of sentence was reversed and remanded for a new trial.
As you can see, the decisions made at the early stages of an investigation can have a profound impact at trial and a successful trial attorney must stay on top of changes in the law. If you are charged with a criminal offense, it is extremely important that you speak with an experienced criminal defense attorney immediately. Our attorneys at the Mazza Law Group, P.C. and Steven P. Trialonas remain vigilant of changes in the law that impact the rights of our clients.
Should I Remain Silent And Talk With A Lawyer Before Or During Arrest? Pennsylvania Supreme Court Rules Pre-Arrest Silence May Not Be Used As Substantive Evidence Of Guilt At Trial was last modified: August 31st, 2015 by Steven Trialonas