Pennsylvania Supreme Court considers pre-arrest silence

On September 10, the Pennsylvania Supreme Court heard arguments in Molina v. Commonwealth and Adams v. Commonwealth, both of which deal with issues of whether the mention of pre-arrest silence in court violates the defendant's Fifth Amendment right to be free from self-incrimination, reported The Legal Intelligencer.

The cases had been postponed pending the U.S. Supreme Court's decision in Salinas v. Texas, which found that a prosecutor's mention of a defendant's silence before he was arrested or given a Miranda warning did not violate the defendant's Fifth Amendment rights because the defendant did not expressly invoke the Fifth Amendment.

While attorneys for Michael Molina and Shataan Adams both took steps to distinguish their cases from the U.S. Supreme Court's June 17 ruling in Salinas, attorneys for the state argued that the U.S. Supreme Court ruling applied to the cases.

"The U.S. Supreme Court was clear. Five justices agreed that the defendants must assert the Fifth Amendment right in order to arguably receive the protection," said Francesco Lino Nepa, an attorney representing the state in the Molina case. "The commonwealth's position was that there were no rights attached until the time the defendant was placed under arrest."

In Molina, a sharply split en banc panel of the Superior Court held that prosecutors may not use nontestifying defendants' pre-Miranda silence as substantive evidence of their guilt.

The panel, ruling 5-4, ultimately concluded that such use infringes on a defendant's Fifth Amendment right.

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