PA Supreme Court: Prosecutor’s Reference to Defendant’s Post-Arrest Silence Requires New Trial
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rivera, holding that even a brief mention of a defendant’s post-arrest silence by the prosecution will almost always require a new trial. Both the state and federal constitutions give an individual the right to remain silent and not speak with the police. This case recognizes that such a right would be meaningless if the government could then argue at trial that the defendant is guilty because they refused to make a statement. It is important to note, however, that courts are much more likely to reverse a conviction where the government tries to take advantage of post-arrest silence than silence that occurred prior to an arrest or the giving of Miranda warnings.
The Facts of Rivera
In Rivera, the defendant was accused of sexually abusing a number of minors. The Pennsylvania State Police investigated the case, and they eventually filed rape charges against him. The police went to his house to arrest him, advised him of the charges, and read him his Miranda warnings. They then formally placed him under arrest. The defendant did not say anything at that time; he did not incriminate himself, and he also did not deny the allegations. Instead, he remained silent. He had an absolute right to do so under the Pennsylvania and United States Constitutions.
The defendant proceeded by way of jury trial. At trial, his defense attorney challenged the credibility of the witnesses. The defense centered around arguing that the complainants were not telling the truth and that they had made up the allegations. During the cross-examination, the defense attorney asked the investigating state trooper a number of questions about the investigation in order to show that the trooper had not done much of an actual investigation. One of those questions was whether the trooper had spoken with the defendant, and the trooper said that he had tried to but was unsuccessful. On re-direct, the prosecutor asked the trooper about the Miranda warnings. Specifically, the following exchange occurred:
Q. [Commonwealth Attorney]: I’d like to direct your attention to June 26, 2018, at about 1400 hours, did you . . . go to the home of [Rivera]?
A. [Trooper Higdon]: Yes.
Q. And was he arrested based on the arrest warrant?
A. I had an arrest warrant in hand, correct.
Q. At approximately 1430 hours, did you read [Rivera] his Miranda [w]arnings?
A. Yes.
Q. So what, what are the Miranda [w]arnings?
A. Miranda [w]arnings are, I’ll say in easy terms of their right to remain silent.
Q. Okay. After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?
A. No.
Q. He never denied doing anything to –
Defense Counsel: Objection to that. A person doesn’t have to deny.
The Court: You’re correct, I think he’s just asking if he did. You may answer.
A. He did not deny.
Q. He never said[,] I didn’t do this?
A. No.
Q. What did he say?
A. Nothing, he said he wished not to talk.
Q. No more questions.
As is reflected in the exchange, the defense attorney objected to this line of questioning, but the trial court overruled the objection. The trial court did not provide a cautionary instruction to the jury. The jury convicted on many of the charges, and the defendant appealed.
The Superior Court affirmed. It held that the prosecutor should not have asked the questions about the defendant’s response to receiving his Miranda warnings, but it found that the error amounted to harmless error. It also found that the prosecutor’s questioning was a fair response to the defense’s opening the door on the issue by asking if the trooper had spoken with the defendant. The defendant petitioned the Pennsylvania Supreme Court for review, and the Supreme Court granted allocatur.
The Supreme Court’s Ruling
The Pennsylvania Supreme Court reversed the conviction. The Court emphasized that the prosecution simply may not ask questions about a defendant’s decision to remain silent after being arrested and receiving Miranda warnings. The issue is more complicated when a defendant has not yet been arrested - in that case, the courts may be more forgiving should a police witness testify that a defendant did not give a statement while describing the steps that the officer took to investigate the allegations.
Post-arrest, however, there is an absolute right to remain silent, and the prosecution may not try to take advantage of silence in order to suggest that a defendant is guilty. Indeed, the Court noted that “referencing a defendant’s post-arrest silence may imperil an entire case.” Even though the evidence in this case appeared to be strong, the Court found that the error was not harmless. First, it found that the reference to silence was not de minimis - the prosecutor had asked four questions about it. Second, the evidence was not merely cumulative of other evidence in the case. Third, the evidence was not so overwhelming that the defendant could not have been prejudiced. Accordingly, the Court granted Rivera a new trial.
In general, the prosecution may not use a defendant’s silence against them at trial. Even references to pre-arrest silence may be inadmissible and lead to reversal on appeal. But this case makes it very clear that references to post-arrest silence are particularly problematic and that even just a few questions about it may lead to a new trial. Prejudice is essentially presumed when the prosecutor attempts to use a defendant’s post-arrest decision to remain silence against them.
Facing criminal charges? We can help.
Criminal Defense Attorney Zak T. Goldstein, Esquire
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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. 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.
