The Legal Intelligencer
September 7, 2023
The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.
Most Americans can recite the Miranda warnings
verbatim—not because of the power and substance of some high school civics
class—but because of television crime dramas. The Miranda warnings
are etched into our psyche, “You have the right to remain silent …” However,
that iconic first line is not as clear as one might think.
This summer the Pennsylvania Supreme Court issued an
important decision regarding the Fifth Amendment of the U.S. Constitution and
Article I, Section 9 of the Pennsylvania Constitution. The language of the
Pennsylvania and U.S. Constitutions are quite similar, but not identical. In
Pennsylvania the Constitution provides, “The accused … cannot be compelled to
give evidence against himself.” The Fifth Amendment provides, “No person …
shall be compelled … to be a witness against himself.”
The Pennsylvania Supreme Court decided Commonwealth
v. Rivera, 22 MAP 2022, on June 21. If you are a constitutional “geek”
you’ll feel as though you stumbled upon a pot of gold. This opinion examines a
defendant’s silence in the context of pre-arrest and post-arrest; harmless
error; a lack of curative instruction; credibility and split verdicts.
Jonathan Rivera was accused of the rape of several
children. He was accused by four females and went to trial. At trial the
prosecutor asked a testifying police officer: “After you read him his Miranda
warnings, he never told you that he didn’t do anything to any of these kids?”
Over the objection of the defense counsel, the police officer was ordered to
answer. The officer said “He [Rivera] did not deny.” All in all, the officer
was asked four different ways if Rivera denied the allegations and each time the
officer answered in the negative.
The jury returned a split verdict finding him not
guilty on the most serious charges. On appeal, Rivera argued that the trial
court erred by permitting the testimony regarding his post-arrest silence.
Rivera suggested that the testimony of his silence “irreparably undermined his
credibility in the eyes of the jury.”
The prosecution argued that the defense briefly
inquired into the defendant’s pre-arrest silence and that opened the door to
the prosecution’s questions. The prosecutor’s questions were a fair response to
the defense counsel’s questioning. The Pennsylvania Superior Court disagreed
and ruled the prosecution’s questions of silence were admitted in error.
However, that’s where the wheels came off at the
Superior Court. The court found the “trial court’s error was harmless because
the prejudice to Rivera, if any, was de minimis.” The problem with the Superior
Court’s finding, according to the Supreme Court, was that the court relied on
decisions relating to pre-arrest silence, instead—as in Rivera’s case—the
issues of one of post-arrest/post-Miranda silence. In Rivera, the
Supreme Court ruled, “Undeniably, the four questions the prosecutor asked here
related to Rivera’s post-arrest, post-Miranda silence.”
The distinction between pre-arrest and post-arrest
silence is crucial. Prejudice to defendants whose post-arrest silence is
brought up is “innate.” The prosecution must prove beyond a reasonable doubt
that the error did not affect the deliberations of the jury.
Why is the commonwealth’s reference to post-arrest
silence innately prejudicial? Most people believe a person falsely accused of a
crime would bitterly protest their innocence or without hesitation challenge
any accusation against them.
The same is often thought when a suspect displays
little emotion in the wake of the suspicious loss a spouse or child.
We know that neither is necessarily indicative of
guilt. People dealing with a loss or confronted with arrest react in different
ways. The shock of such a trauma could simply be dealt with by silence—neither
should be easily accepted as an admission of guilt.
Although the Supreme Court acknowledged that the
court has struggled to create a uniform rule to govern references to pre-arrest
silence—the case before the court was not the case to address that issue. The
court wrote, “We need not square the circle here.”
According to the Supreme Court, the court first took
up the issue of post-arrest silence more than a half century ago. In Commonwealth
v. Haideman, 296 A.2d 765 (Pa. 1972), the Supreme Court held, “Testimonial
reference to an accused’s silence … at the time of arrest is … constitutionally
impermissible.”
The court in Haideman pointed out that
even Miranda v. Arizona, 384 U.S. 436 (1966), forbids the prosecution from
“introducing at trial the fact that the accused ‘stood mute or claimed
privilege.’”
The Supreme Court also explored Commonwealth v.
Greco, 350 A.2d 826 (Pa. 1976), “I advised him … that he had the right to
remain silent and he didn’t actually make any statement …”; Commonwealth
v. Singletary, 387 A.2d 656 (Pa. 1978), “And on advice of counsel, you
made no statement concerning the case?”; and Commonwealth v. Turner, 454
A.2d 537 (Pa. 1982), “Did you ever tell the police that somebody was shooting
at you?”
None of these decisions relied on by the Supreme
Court were cited by the Superior Court in their Rivera decision.
In each of the above decisions, the Supreme Court granted
the defendant a new trial. The court noted, “This court has repeatedly signaled
to the commonwealth that referencing a defendant’s post-arrest silence may
imperil an entire case.” The court went further, “We have often deemed a single
such reference—answered or not, curative instruction or not—offensive enough to
the constitution and the principles it embodies as to call for a new trial.”
The last question addressed by the Supreme Court,
now that it was clear that the testimony of Rivera’s post-arrest silence was
admitted in error, was whether the error was harmless. The court looked
to Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014). There are three
prongs to the Hairston harmless error test. First, did the error
prejudice the defendant or was the error de minimis?
The court quickly disposed of the first prong—the
Superior Court had reviewed the case as pre-arrest silence when it was clearly
post-arrest silence.
The second prong related to whether the error was
merely cumulative. The commonwealth did not even argue that the testimony of
the police officer regarding Rivera’s post-arrest silence was cumulative of
other evidence presented in the case.
The third prong provides that the commonwealth must
prove beyond a reasonable doubt that “properly admitted and uncontracted
evidence of guilt was so overwhelming and the prejudicial effect of the error
was insignificant …”
The court found that due to the lack of physical
evidence, credibility was central to this case “It is not improbable that the
admission of this testimony might have contributed to the conviction.” The
court also pointed out the absence of a clear curative instruction by the trial
judge and the spit verdict by the jury all contributed to the finding that “the
allowance of the constitutionally impermissible testimony here was not
harmless.”
Matthew T. Mangino is of counsel with
Luxenberg, Garbett, Kelly and George and the former district attorney of
Lawrence County. He is the author of “The Executioner’s Toll.” You can follow
him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.
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