The Admissibility of Evidence of the Pre-trial Exercise of Constitutional Rights - July 2008 - Criminal Law
| Publication year | 2008 |
| Pages | 81 |
| Citation | Vol. 37 No. 7 Pg. 81 |
2008, July, Pg. 81. The Admissibility of Evidence of the Pre-Trial Exercise of Constitutional Rights - July 2008 - Criminal Law
July 2008
Vol. 37, No. 7 [Page 81]
Criminal Law
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law; legislation; and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Pamela F. Mucklow is a former prosecutor in private practice in Englewood, focusing on plaintiff's employment law and appellate work - pammucklow@msn.com.
Whether, at trial, a prosecutor may introduce evidence touching on the pre-trial exercise of Fourth and Fifth Amendment rights by a defendant raises both constitutional and evidentiary issues. This article discusses the current state of the law with respect to these issues.
In every criminal trial, a defendant formally exercises or waives his or her Fifth Amendment right when he or she takes the stand to testify or declines to do so. In many criminal trials, issues arise over the admissibility of evidence touching on the exercise of Fourth and Fifth Amendment rights pre-trial: May evidence of a defendant's pre-trial exercise of Fourth or Fifth Amendment rights be introduced at trial, or is it inadmissible on evidentiary or constitutional grounds? Would the use of such evidence offend Fourteenth Amendment Due Process(fn1) or impermissibly burden the exercise of Fourth or Fifth Amendment rights?
The answer is: it depends. It depends on the right to be protected and the manner in which evidence of the exercise of the right is being offered. The burden on the exercise of a constitutional right is impermissible if it impairs to an appreciable extent any of the policies behind the right in question.(fn2) The purpose of this article is to report the state of the law concerning the use at trial of evidence touching on the pre-trial exercise of the defendant's Fourth and Fifth Amendment rights.(fn3)
The Fifth Amendment guarantees that people will not be compelled to give testimony against themselves.(fn4) When may the prosecution comment on, or introduce evidence of, a defendant's exercise of his or her right to remain silent?
¯ Generally, prosecutors may not comment in closing argument on a defendant's failure to testify at trial.
The U.S. Supreme Court in Griffin v. California5 held that comment by the prosecution on the defendant's failure to testify violated his Fifth Amendment right. However, what constitutes "comment" sometimes can be unclear. In general, Griffin prohibits comment by the prosecutor only if it was intended to or had the effect of directing the attention of the jury to the defendant's failure to testify.(fn6)
In Martinez v. People,(fn7) the Colorado Supreme Court held that the prosecutor did not violate Griffin when he argued in closing that the people's evidence was "uncontradicted." On the other hand, in Montoya v. People,(fn8) the Colorado Supreme Court overturned the defendant's conviction because of the prosecutor's comments in closing argument. Alluding to the mental element of the offense, the prosecutor said, "You are asked to decide what went on in his mind without hearing it from the very person, the only person who really knows."(fn9)
In United States v. Robinson,(fn10) the U.S. Supreme Court recognized an exception to Griffin for comments that are a fair response to arguments of defense counsel. The Court held that even the prosecutor's very direct comment that "the defendant could have taken the stand but didn't" did not violate Griffin, because it was a fair response to defense counsel's argument that the government had not allowed the defendant to explain his side of the story.(fn11)
¯ Generally, prosecutors may not introduce as substantive evidence statements taken in violation of Miranda.(fn12) However, such statements, if trustworthy, may be used to impeach the defendant's testimony.
In Miranda v. Arizona,(fn13) the U.S. Supreme Court held that, if a person in custody is to be subjected to interrogation, he or she first must be informed of the following: (1) the right to remain silent; (2) anything he or she says may be used against him or her in a court of law; (3) he or she has a right to consult an attorney and to have the attorney present during questioning; and (4) if he or she cannot afford an attorney, one will be provided. The Court said the advisement is not necessarily required by the Fifth Amendment, but has the purpose of protecting the free exercise of the Fifth Amendment in the context of custodial interrogation.(fn14) With one exception, statements of a defendant taken in violation of Miranda generally cannot be introduced at trial by the prosecution in its case in chief.(fn15)
In New York v. Quarles,(fn16) the Court recognized a public safety exception to the Miranda requirement. Police officers pursued Quarles into a busy supermarket after being told he was armed and had just committed a rape. When the officers took him into custody, he was wearing an empty holster. Without advising him of his Miranda rights, an officer asked him where the gun was. The Court, creating a public safety exception to Miranda, held admissible the defendant's statement concerning the location of the gun, because the statement was reasonably prompted by a concern for public safety.(fn17)
Further, the Court held in Harris v. New York(fn18) that the credibility of a defendant's testimony may be impeached by the use of earlier conflicting statements that were voluntary, although taken in violation of Miranda. The Court stated that the shield provided by Miranda should not be perverted into a license to commit perjury, free from the risk of confrontation with prior inconsistent utterances.(fn19) Because of the rule in Harris, attorneys litigating motions to suppress should insist that courts suppressing statements because of Miranda violations also rule on whether the statements nevertheless were voluntary.
The Colorado Supreme Court in People v. Trujillo(fn20) held that, with two exceptions, if the defendant does not testify, the rule in Harris cannot be extended to allow unwarned, custodial statements to be used either to rebut a defense theory or to impeach a defense witness. The exceptions are: (1) if a defense expert testifies to his or her opinion that is based on what the defendant told him or her and the defendant's unwarned custodial statements would lead to a different opinion; and (2) if a defense witness testifies about what the defendant told him or her, the defendant as a hearsay declarant may be impeached with the unwarned custodial statements.(fn21)
¯ Generally, prosecutors may not use a defendant's post-advisement silence against him or her at trial, either as substantive evidence or for impeachment.(fn22)
In dicta, the Miranda Court stated that the prosecution cannot use a defendant's post-advisement silence against him or her at trial.(fn23) The defendant in Doyle v. Ohio(fn24) testified on direct examination to an exculpatory version of events. On cross-examination, the prosecutor questioned him about his failure to have told the story to police officers following his Miranda advisement.
On appeal, Doyle argued that the prosecutor's cross-examination had violated his Fourteenth and Fifth Amendment rights. Without addressing the petitioner's Fifth Amendment argument, the Court held that the use for impeachment purposes of a defendant's post-advisement silence violates the Due Process Clause of the Fourteenth Amendment, because the Miranda warning implies a promise that the defendant's silence will not be used against him at trial.(fn25)
By extension, evidence of post-advisement silence is inadmissible in the prosecution's case in chief. If the implicit promise in Miranda means the Fourteenth Amendment is violated by...
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