Can Silence Be Used Against You in Court?

Can your post-arrest silence be used against you in court?

You have the right to remain silent. Anything you say can and will be used against you in a court of law. But, if you choose to remain silent, we will also use that against you in a court of law? Is that really how it works?

Pretty much – South Carolina and federal courts have said that, if you remain silent, prosecutors can later use your silence to impeach you if you later testify at your trial, unless police Mirandized you before you were silent.

Even worse, the SC Court of Appeals has held that the burden is on you to prove that you were Mirandized if you want to prevent the prosecutor from claiming that your silence is evidence of your guilt…

Can Your Silence Be Used Against You in Court?

Everyone knows that you have the right to remain silent – we’ve all heard it many times when police read Miranda rights to suspects in movies and television shows.

But what good is your right to remain silent if the prosecution will later use it against you and claim that your silence is evidence of your guilt?

The appellate courts have made it clear that, if you later testify about what happened and why you are not guilty, prosecutors can impeach you with your silence. Because your silence at the time of arrest is “inconsistent” with your statements at trial, the prosecutor can say, “Well this is the first time we’ve heard this story, isn’t it? Why didn’t you tell the police when you were arrested?”

Doyle v. Ohio – Post Arrest Silence Cannot Be Used Against You

If you have read prior blog posts here about whether you should talk to police, you know that, in general, it is a bad idea unless you are with your attorney and your attorney is advising you to speak with the police.

So, you exercise your right to remain silent – as you are being arrested, you say nothing and your only response is, as it should be, “I want my attorney and I do not want to answer questions right now.”

At trial, on the witness stand, you explain to the jury what happened. On cross-examination, though, the prosecutor repeatedly implies that you are a liar because you did not say the same things to the police when you were being arrested – how is that okay?

In 1976, the US Supreme Court drew a line in the sand in Doyle v. Ohio, finding that it is a Fourteenth Amendment Due Process violation for a prosecutor to impeach a defendant at trial with his post-arrest, post-Miranda silence.

But what if you exercise your right to remain silent before arrest? Before you have been Mirandized?

Fletcher v. Weir – Post Arrest Silence Can Be Used Against You

The US Supreme Court revisited the issue in Fletcher v. Weir, clarifying that when they said post-arrest, post-Miranda silence cannot be used against you, they actually only meant post-Miranda silence cannot be used against you.

Although the Sixth Circuit Court of Appeals held that the defendant’s post-arrest silence could not be used against him, the US Supreme Court disagreed, reversed, and held that post-arrest silence can be used to impeach a defendant who testifies at trial.

In Fletcher, the Court noted “that the record [did] not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest.” And the Court held that “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings,” it is okay for a prosecutor to cross-examine a defendant about his or her post-arrest silence.

A defendant’s post-arrest silence cannot be used to impeach the defendant at trial but only if the defendant was Mirandized – otherwise, it’s fair game for the prosecutor.

What if the prosecution does not admit that a defendant was Mirandized? Does the defendant have to prove that they were Mirandized?

The Burden of Proof Is on the Defendant

In State v. Green, decided on February 3, 2021, the defendant argued on appeal that his post-arrest silence should not have been used against him because there was evidence in the record (the defendant’s own testimony) that he had been Mirandized.

The SC Court of Appeals held that it did not matter if there was some evidence that the defendant had been Mirandized – the question was whether the trial judge determined that the defendant had been Mirandized:

We believe the question is not whether any evidence has been presented that a defendant received Miranda warnings when determining whether a Doyle violation has occurred. Rather, the question is whether the trial judge, who saw and heard testimony on the matter and is in a better position to judge credibility, has the authority to make a factual determination on whether Miranda warnings have been given for purposes of determining a Doyle violation issue when contrary evidence is presented, and the standard of review to be applied to the trial court’s determination in such a matter.

If the state wants to use the defendant’s exercise of their constitutional right to remain silent to impeach the defendant, the state does not have to prove that Miranda rights were not read to the defendant.

Although the State has the law enforcement witnesses, the written reports, the Miranda forms that were or were not signed, and the video evidence that could prove or disprove that a defendant was Mirandized, the burden is on the defendant to prove that Miranda rights were read to him or her.

In summary:

You have a constitutional right to remain silent.

But, unless they tell you about that right, they can use your silence against you to say you are guilty. And, if you were Mirandized – the only situation where they cannot use your silence against you – the burden is on you to prove that you were Mirandized.

Criminal Defense Lawyer in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.


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