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Can the State Use a Defendant’s Pre-Arrest Silence Against Him/Her at Trial in Florida?

Most people are aware that the United States Constitution affords people the right to remain silent. This means that a person does not have to give any statement to police that might be incriminating, and a defendant cannot be compelled to testify at his/her own trial. If a person chooses not to speak with police and/or chooses not to testify at trial, the state cannot use that choice against the person. For instance, a prosecutor could never tell the jury to infer that the defendant is guilty because he/she did not testify and defend him/herself at trial.

When a person is arrested in Florida, he/she should be read Miranda warnings. The Miranda warnings inform a person of certain rights, including the right to remain silent and the warning that if the suspect does make a statement, it can be used against him/her in court. That is fairly well known at this point. If a person is arrested and decides not to make a statement, he/she is exercising his/her constitutional rights, and the state cannot mention that silence at the defendant’s trial to try and use it against him.

However, there are times when a police officer is investigating a crime and is not sure whether a person is a suspect. In those early stages, before any arrest, if the police officer asks a person questions and the person remains silent, can that silence be used against him/her at trial? Technically, before an arrest or a detention where the person is not free to leave, Miranda warnings and the constitutional right to remain silent are not implicated. What if a police officer arrives at a crime scene, has no idea who the suspect might be, asks a person some questions, that person remains silent and then is later developed as a suspect? Can the state use that silence against him/her?

This came up in a murder case near Jacksonville, Florida. The police came to the scene of what appeared to be a suicide and asked questions of the victim’s wife. The wife stayed silent. The police officer did not give the wife Miranda warnings because he did not have any indication the wife was a suspect at that point. Later, the wife was arrested and charged with murder. At the trial, the defendant did not testify, but the state brought out the fact that she failed to answer the police officer’s initial questions at the crime scene. The prosecutor argued that her silence was evidence of her guilt in his closing arguments. The wife was convicted of murder.

The criminal defense lawyer appealed the conviction arguing that the state violated her constitutional rights by commenting on her silence when the police came to the scene. The appellate court agreed and reversed the conviction. The current law in Florida says the state cannot comment on a person’s silence in response to police questions either before arrest and Miranda warnings or after. The state can use that silence to impeach a defendant at trial. For instance, if the wife testified at the trial and said she told the police officer this or that, the state could bring the police officer in to testify that she was silent, contrary to her trial testimony. However, if the defendant does not testify at the trial or does not say anything at the trial that is contrary to her pre-arrest silence, the state cannot use her pre-arrest silence against her and cannot tell the jury it is evidence of guilt.