In Florida, Right to Remain Silent Starts at Arrest

A person who has been arrested for a crime in Florida and elsewhere has the right to remain silent. Most people have heard of the Miranda warnings that are read to a person pursuant to an arrest, which includes the right to remain silent. However, the right to remain silent is a right afforded by the Constitution and begins as soon as a person is arrested even if the police officer has not yet read the Miranda warnings.

Another aspect of the right to remain silent after an arrest is the fact that, in the subsequent criminal trial, the prosecutor is not allowed to make a comment to the jury about the defendant’s silence after the arrest or the defendant’s exercise of his/her right to remain silent for the time period before, during and after the Miranda warnings are read after the arrest. An improper comment by the prosecutor about a criminal defendant’s silence after an arrest can take several forms, and most of them are improper.

For instance, consider a recent Florida criminal case where a person in an airport consented to a search of his luggage in which the police found two bricks of cocaine. The subject remained silent when he and the officer saw the cocaine in his bag and was arrested. At the trial, the defendant testified, and the criminal defense attorney argued, that the defendant did not know the drugs were in his bag. The prosecutor commented that if that was the case, the defendant should have said something about how he was surprised the cocaine was in his bag and that he did not put them there as soon as he and the police officer saw the bricks of cocaine. This was found to be an improper comment on the defendant’s silence after his arrest and his conviction for drug trafficking was reversed.

Criminal prosecutors would often like to argue that if a defendant is innocent, why didn’t he/she say so and come up with an explanation after an arrest. However, the Constitutional right to remain silent mandates that a person who has been arrested does not have to say anything to explain him/herself and any comment by the state regarding the exercise of that right can be grounds for the reversal of a criminal conviction.