When can the prosecutor talk about a defendant’s post-arrest silence at trial?

In 2021, I wrote about the SC Court of Appeal’s opinion in State v. Green where the Court held that 1) it is okay for a prosecutor to cross-examine a defendant about their post-arrest silence as long as no one read Miranda rights to the defendant and 2) the burden of proof is on the defendant to prove that Miranda rights were read to them.

Now, the SC Supreme Court has decided the issue, affirming (mostly) the Court of Appeal’s opinion, but finding that the burden is on the prosecutor to prove that Miranda rights were not read, and outlining a specific procedure for courts to follow when a Doyle question arises during a criminal trial in South Carolina.

When Can the Prosecutor Talk About a Defendant’s Post-Arrest Silence?

You have the right to remain silent. Anything you say can and will be used against you in a court of law. If you choose to remain silent, that will also be used against you in a court of law…

There was a time when I thought 1) we all had a constitutional right to remain silent and 2) the state would not be permitted to use that against us if we were charged with a crime.

Our right to remain silent, however, like our other constitutional rights (except our right to bear firearms which seems to be constantly expanding), has been steadily diminished over the decades as the courts find more and more exceptions to our constitutional rights and the courts limit our constitutional rights to the most government-friendly, extreme interpretations.

For example, you have the right to remain silent. But only if you assert your right to remain silent. If you don’t say, unequivocally, “I am asserting my right to remain silent and I want my attorney,” the police can continue to attempt to question you.

Similarly, if you exercise your right to remain silent, the state will be permitted to use that against you on cross-examination at trial – “Now you say you were at your friend’s house at the time of the murder, but why didn’t you tell the police that when they arrested you?”

The end result (so far) of a long line of US and SC Supreme Court cases on post-arrest silence is:

• If you exercise your right to remain silent, the prosecutor can comment on your silence,
• Even if your silence was post-arrest,
• Unless you were Mirandized.

If you were Mirandized post-arrest, the prosecutor is not permitted to “impeach” you with your post-arrest silence. In just about every other situation, it’s fair game, and you can expect the prosecutor to grill you about why you didn’t explain every detail to the police as they were arresting you, implying to the jury that you are now lying about what happened…

What is a Doyle Hearing?

If the prosecutor intends to cross-examine the defendant on their silence, implying that the defendant is somehow lying because they exercised their right to remain silent at the time of their arrest, the defendant is entitled to a “Doyle hearing” where the court will determine whether the defendant was in custody and whether Miranda warnings had been read to the defendant at the time of their silence.

Because no one knows for certain whether a defendant will testify at their trial, this hearing must happen when the defendant testifies. In most cases, the prosecutor would like to just wait for the defendant to testify and then impeach them with their post-arrest silence – even if the defendant objects, at this point the jurors have heard the inadmissible testimony, the “bell cannot be un-rung,” and the prosecutor is happy…

The SC Supreme Court in Green instructed courts and prosecutors that this should not be permitted, however – the prosecutor should not ask the potentially inadmissible question in front of jurors and should, instead, first raise the issue in a “Doyle hearing” outside the presence of the jury.

Who Has the Burden of Proof in a Doyle Hearing in SC?

The Court of Appeals in State v. Green held that it was permissible for the State to comment on Green’s post-arrest silence and that the evidence showed that Green failed to prove that law enforcement Mirandized him.

The SC Supreme Court agreed that it was permissible for the State to comment on Green’s post-arrest silence but held that the burden of proof is on the state, not the defendant, to prove that the defendant was not Mirandized. Of course, they affirmed the verdict, holding that the State proved by a preponderance of the evidence that Green was not Mirandized, despite his testimony that he was Mirandized.

What is the Procedure for a Doyle Hearing in SC?

The SC Supreme Court outlined a procedure for trial courts to follow in the future when there is an objection based on Doyle:

• The state should alert the trial court when the issue arises (usually when the defendant elects to testify),
• The state should inform the court, outside the presence of the jury, of its intent to impeach the defendant with his or her post-arrest silence,
• The defendant can then 1) concede that Miranda warnings were not given (and, therefore, the cross-examination will not violate Doyle), or 2) object and invoke Doyle,
• If the defendant objects, the defendant must “affirmatively represent to the court that Miranda warnings were given,” although formal testimony is not necessary,
• The state will then have the burden of proving by a preponderance of the evidence that Miranda warnings were not given, and
• Although the burden of proof remains on the State, the defendant is entitled to present evidence.

The SC Supreme Court stressed that there is a “significant risk for prejudice and acknowledged the better practice is to have a hearing outside of the jury’s presence before attempting to impeach the defendant with this type of evidence,” a fact that they have “repeatedly warned solicitors against…” for decades.

Criminal Defense Lawyers in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts and has extensive trial experience in all types of criminal cases from traffic offenses to murder.

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