The Cautionary Instruction: PA Supreme Court to take on issue of silence

The Pittsburgh Post-Gazette/Ipso Facto
August 10, 2012

The Pennsylvania Supreme Court will take up an important criminal law question that has befuddled practitioners across the commonwealth and across the country. The case involves whether prosecutors may refer to a defendant's pre-arrest silence at trial.

The Fifth Amendment to the United States Constitution and Article I, section 9 of the Pennsylvania Constitution protect all persons from being compelled to be a witness against themselves, commonly known at the right to remain silent.

However, the right is not as straightforward as it appears. Silence can, and has, been used against criminal defendants. The First, Sixth, Seventh and Tenth Federal Circuit Courts of Appeal have held that pre-arrest, pre-Miranda v. Arizona silence is not admissible as substantive evidence of guilt. The Fifth, Ninth, and Eleventh Circuits have gone the other way.

Six state appellate courts have ruled that prosecutors may not use silence to infer guilt and at least three state appellate courts have ruled the opposite.

In February, the U.S. Supreme Court imposed its own silence when it declined to take up the appeal of a Florida man who contended that prosecutors used his pre-arrest silence during police questioning as evidence against him at trial.

The confusion in Pennsylvania stems from a couple of recent Superior Court decisions. In November of 2009 the court decided Commonwealth v. Molina, an Allegheny County case. Molina refused to come to the police station to be interviewed about a missing person. Prosecutors brought up Molina’s refusal talk as evidence of guilt. The court held, “[T]he commonwealth cannot use a non-testifying defendant's pre-arrest silence to support its contention that the defendant is guilty of the crime charged.”

The case heading to the Pennsylvania Supreme Court is Commonwealth v. Adams. Adams challenged the trial court's admission of testimony from a police officer concerning his pre-arrest refusal to speak. He argued it violated his right to remain silent. Although the Superior Court agreed with Molina, the government may not use silence as substantive evidence of guilt, they distinguished Adams from Molina and held that Adams’ constitutional rights were not violated.

In yet another wrinkle, this summer the Superior Court ruled that prosecutors can bring up evidence of a defendant's pre-arrest silence under the “fair response doctrine” even if the defendant did not testify. In Commonwealth v. Fischere, the appellant was questioned about the death of a child in his care. At first he spoke with police and then later refused to talk without a lawyer.

During cross-examination, defense counsel asked a police officer why he didn't ask more probative questions during the initial interview of Fischere. The commonwealth then asked the court for permission to cross-examine Fischere about his pre-arrest silence if he took the witness stand. The trial court permitted the request and the Superior Court agreed.

Commonwealth v. Adams will be scheduled for oral argument.

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