To Testify or Not and Pre-Arrest Silence

The most important decision a criminal defendant confronts is whether or not to testify at trial. If a defendant chooses to testify, many issues arise. One significant issue is potential cross-examination of pre-arrest silence. This arises in the context of prosecutor’s suggesting to the judge or jury, or direct questions to the testifying defendant, “Well did you tell this story to the police before you were arrested?”

In accordance with the 5TH Amendment to the U.S. Const. and Article I, § 9 of the Pennsylvania Constitution, there are four distinct time periods during which a defendant may remain silent or offer a statement during the criminal process: “(1) before arrest; (2) after arrest but before the warnings required by Miranda have been given; (3) after Miranda warnings have been given; and (4) at trial.

In a recent case, Commonwealth v Kuder, 2013 PA Super 35; 2013 Pa. Super. LEXIS 80 (February 25, 2013), this defendant’s pre-arrest silence was presented to a jury after he testified at trial. The Defendant objected and the Superior Court reviewed all the relevant case law discussing the timing of the silence and ruled that arguments to a jury of a defendant’s pre-arrest silence was proper in light of the fact that the Defendant testified at trial and placed his credibility as an issue for the jury to decide.

This is a very difficult proposition to understand. A review of the case law reveals the ruling is correct. To start, the holding in this case does not change the constitutional provision that a defendant’s continued silence throughout all of the proceedings (including trial) cannot be used against him. However, once a defendant testifies at trial, in federal court, impeachment as to a defendant’s silence at any time is permitted because such follows the defendant’s decision to cast aside his cloak of silence at trial.

Pennsylvania’s state court rule is more limited and permits reference to pre-arrest statements (presumably a defendant’s first story of the occurrence) if a defendant testifies at trial. In Pennsylvania, a defendant can not be impeached by the inconsistency between his silence post- arrest, either before or after Miranda warnings are administered, and trial testimony. Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982). This is because an accused has a legitimate expectation that no penalty will attach to a lawful exercise of his constitutional right to remain silent, whether Miranda warnings are given or not. Finding that juries clearly assume silence as a badge of guilt, in Pennsylvania state court prosecutors are not allowed to reference a defendant’s post arrest, pre-Miranda silence when discussing a defendant’s trial testimony to a jury.

There are no constitutional protections pre-arrest as, by definition, there is neither detention nor interrogation. It is in this pre-arrest time period within which statements could have been made, but were not, that are the issue. When a defendant elects to testify, neither the right to remain silent nor due process principles are offended by a prosecutor’s reference to that defendant’s pre-arrest silence, when that reference is used to impeach the testifying defendant’s credibility. This is the time period when either police are “just investigating”, have not “detained” a suspect, and are merely questioning persons who could have knowledge of the case.

Unfortunately, if a charged person, now the defendant, was contacted by the police pre-arrest during that “investigatory period”, and chooses not to talk, but then testifies at trial in his own defense, his pre-arrest silence will be used against him. This happens in the context of a trial when a defendant gets on the stand and presents a version of events that at trial sounds good, but may not have a “ring of truth” of “mesh with the other pieces of the trial evidentiary puzzle” when placed in comparison to that defendant’s pre-arrest silence. The simple factual concern about which the courts let the prosecutors present to the judge, jury, or cross examine a defendant is clear: “Did you tell that to the police when they first meet with you? Why not? “

The lesson learned is be very careful when you decide to testify at trial if pre-arrest opportunities to talk to the police were presented or the “simple explanation” could have been given but was not. That silence may be used as a weapon against you at trial if you testify. As well, motion to suppress must be presented to ascertain the time period of “pre-arrest” and “post-arrest” to eliminate this “pre-arrest” silence time period.

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