PA Supreme Court: Prosecutors May Not Use a Defendant’s Decision to Hire a Lawyer Against Him

Criminal Defense Attorney Zak Goldstein

The Pennsylvania Supreme Court has decided Commonwealth v. Jenkins, No. 66 MAP 2024 (Pa. Oct. 1, 2026), holding that a prosecutor violates a defendant’s due process right to a fair trial by telling the jury that the defendant consulted or retained a lawyer before police questioned or arrested him. But the defendant did not get a new trial. The Court held that the error is not structural and found it harmless this case because the trial judge gave a strong curative instruction and the evidence of guilt was overwhelming.

The Facts of Jenkins

On Valentine’s Day 2017, the defendant spent the evening drinking with a longtime friend and the friend’s girlfriend at their Dauphin County apartment. The friend felt dizzy and went to bed. The girlfriend told the defendant to leave, and he refused. She remembered him striking her and throwing her against a wall hard enough to damage it, and she remembered nothing after that. Motel surveillance video showed the defendant arriving at his room around 3:15 a.m. and carrying her limp body inside. She woke up in his room with her pants and underwear removed.

Two months later, after the defendant hired a lawyer, a detective interviewed him by phone with his attorney participating. The defendant denied any wrongdoing and specifically denied having sex with the complainant. DNA testing later identified his semen on the vaginal swab taken at the hospital, which is a tough fact. The Commonwealth charged him with rape of an unconscious victim, kidnapping, and related offenses.

The defendant did not testify at trial. In closing, the prosecutor told the jury that the defendant knew the case was serious, so “[h]e gets a lawyer. He gets an attorney. This isn’t some schlep who just went in and spoke with the police without the benefit of having someone there to protect your rights, no.” She then argued that when he had the chance to come clean with his lawyer on the call, “[h]e lies. He lies.”

Defense counsel unsurprisingly moved for a mistrial. The trial court denied the motion but, at defense counsel’s request, told the jury that the defendant had a right to counsel, that “when statements are given the law prefers that it be with counsel,” and that the jurors should draw no adverse inference from his use of a lawyer. The jury convicted him on all charges, and the court imposed 13 to 30 years of incarceration. A divided Superior Court panel affirmed.

The Supreme Court’s Decision

The Supreme Court affirmed, but it agreed with the defense on the central question. Writing for the majority, Chief Justice Todd explained that when a person has reason to believe police are investigating him, the decision to consult or hire a lawyer does not suggest guilt and has no relevance to whether he committed the crime. Relying on federal and out-of-state decisions, including the Third Circuit’s decision in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), the Court held that “it is error for a prosecutor to inform the finder of fact that a criminal defendant sought the advice or assistance of counsel prior to questioning by the police, or prior to arrest, for the criminal offense for which they are being tried, as it impacts the defendant’s due process right to a fair trial guaranteed by the Fourteenth Amendment.”

The Court found this prosecutor’s argument especially troubling because she tied the lie to the lawyer, suggesting that the defendant lied with his attorney’s help or blessing. The Commonwealth was free to argue that the DNA proved the defendant lied when he denied having sex with the complainant. The reference to his attorney added nothing to that point. It only undermined the defendant, and his lawyer, in the eyes of the jury.

The Court then rejected the defense argument that the error was structural and required automatic reversal. Applying Weaver v. Massachusetts, 582 U.S. 286 (2017), the Court found that a single improper comment at the end of a three-day trial did not infect the whole proceeding and that its effect could be measured against the rest of the evidence. Like other improper prosecutorial remarks, the comment is subject to harmless error review.

Finally, the Court held that the error was harmless beyond a reasonable doubt. The surveillance video, the DNA results, and the complainant’s testimony provided overwhelming evidence of guilt. The trial judge also gave a prompt instruction that directed the jury not to draw any adverse inference from the defendant’s use of a lawyer, and the Court presumed the jury followed it. The opinion closes with a warning to prosecutors that “this line of questioning should be scrupulously avoided.” Justice McCaffery, joined by Justice Donohue, filed a concurring and dissenting opinion.

The Takeaway

Goldstein Mehta LLC Criminal Defense

Jenkins gives defense lawyers a clear, binding rule: the Commonwealth may not tell the jury that the defendant spoke with or hired a lawyer before police questioned or arrested him. But the rule helps only if trial counsel objects right away and moves for a mistrial. In distinguishing the federal and out-of-state cases that granted new trials, the Court pointed out that those cases involved no timely objection, no curative instruction, or an instruction that did not address the comment. Lawyers litigating this issue should also raise Article I, Section 9 of the Pennsylvania Constitution. The defendant in Jenkins did not argue that it provides greater protection, so the Court did not decide that question. But here, the evidence was still just too strong to overcome, so the defendant did not receive a new trial. In many cases, the evidence will not be quite as strong. Lawyers should always object to improper commentary on a defendant’s decision to retain counsel or remain silent in the face of questioning.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.