Related Evidentiary Issues

• Jurisdiction: Maryland

III. Related evidentiary issues

A. State's use of the defendant's silence as substantive evidence on the motion to suppress or at trial permissible under Supreme Court case law, but not Maryland case law

In Berghuis v. Thompkins, 560 U.S. 370 (2010), the defendant was arrested and was given Miranda warnings. The defendant did not assert his Miranda right to remain silent. Id. at 374-76. Instead, for a long time, the defendant was mostly silent, even though police continued to attempt to question him. Id. After a long silence, the defendant eventually made an incriminating statement. Id. The Supreme Court held (1) that the defendant did not invoke his right to remain silent by remaining silent and (2) that he waived his right to remain silent by "knowingly and voluntarily ma[king] a statement to police." Id. at 380-87.

In Salinas v. Texas, 570 U.S. 178 (2013), the defendant voluntarily answered police questioning without being placed under arrest or receiving Miranda warnings. Id. at 181-83. At one point, in response to a question that could have incriminated him, the defendant remained silent. Id. The officer stated that the defendant "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." Id. The State introduced the defendant's non-response in its casein-chief. Id.

The Supreme Court held that the defendant did not "expressly" invoke his Fifth Amendment privilege by remaining silent and that neither of the two exceptions to the invocation requirement—"that a criminal defendant need not take the stand and invoke the privilege at his own trial" and "that a witness' failure to invoke the privilege must be excused where government coercion makes his forfeiture . . . involuntary"—applied to the defendant's case. Id. at 183-86. The Court held that the defendant waived the Fifth Amendment privilege and, thus, it was permissible for the State to use his silence in its case-in-chief. Id. at 190-91.

Maryland has addressed this issue under its common law rules of evidence. In Maryland, the defendant's (1) pre-arrest silence in police presence; and (2) post-arrest silence (regardless of whether Miranda warnings had been given), are inadmissible as substantive evidence of the defendant's guilt. Weitzel v. State, 384 Md. 451, 456-61 (2004) (evidence of pre-arrest silence in presence of police officer was inadmissible as substantive evidence of the defendant's guilt); Ware v. State, 170 Md. App. 1, 28-29, cert. denied, 396 Md. 13 (2006), cert. denied, 549 U.S. 1342 (2007) (error to admit evidence of the defendant's post-Miranda silence when asked about the location of the murder weapon).

In Kosh v. State, 382 Md. 218, 227-34 (2004), the Court of Appeals held that it is impermissible for the trial court to inform the jury that the Defendant remained silent when the police asked about the crime.

At trial, the State may not call the jury's attention to the fact that the defendant exercised the Fifth Amendment privilege against compelled self-incrimination and elected not to testify. Griffin v. California, 380 U.S. 609, 612-15 (1965). In Carter v. Kentucky, 450 U.S. 288, 299-303 (1981), the Supreme Court held that the trial court must, if requested by the defendant, instruct the jury not to draw an adverse inference from the defendant's election not to testify.

In Lakeside v. Oregon, 435 U.S. 333, 337-41 (1978), the Supreme Court held that the Fifth Amendment permits the trial court to give a Griffin-Carter curative instruction, even over the defendant's objection. However, in Hardaway v. State, 317 Md. 160, 166-69 (1989), the Court of Appeals held that, under Maryland's common law, the trial court may not give a Griffin-Carter curative instruction over the defendant's objection. MPJI-Cr 3:17.

If the defendant invites a response, the State may respond, even if that calls attention to the defendant's election not to testify. In United States v. Robinson, 485 U.S. 25, 27-32 (1988), the Supreme Court held that, when the defendant implied during closing argument that the Government was...