You have the right to remain silent. You also have the right to remain PARTIALLY silent. And if you save the good stuff for trial, that’s okay.
In Doyle v. Ohio, 426 U.S. 610 (1976), SCOTUS made it clear the prosecution cannot use post-arrest silence to imply guilt.
The same is true if you talk but leave some things out. They can’t say at trial: “That can’t be true because if it was, he would’ve mentioned it when he talked to the cops way back when.”
That doesn’t mean that prosecutors can’t point out inconsistencies in what a defendant said to police before and what he says at trial. That’s fine.
But it can’t imply a person is being dishonest because: “Doesn’t that seem like information he would’ve mentioned sooner?” Perhaps the person chose to remain partially silent (about that part) when they spoke before.
A case decided this week by the U.S. Court of Appeals for the 10th Circuit provides an example.
Kevin Ward and Anthony Armenta assaulted three other men, causing serious injuries. The attack occurred on an Indian reservation, so it was charged in federal court. Ward used a gun during the assault so he was also charged with 18 U.S.C. § 924(c) for using a firearm during a crime of violence.
After he was arrested, Ward admitted to police that he took part in the assault with Armenta. Seems open-and-shut but he went to trial.
At trial, he said that he only participated in the assault because he was under duress, fearful of what Armenta would do to him if he did not. But he hadn’t told the police that when he spoke to them. He had only admitted that he committed the assault. He didn’t say why.
The prosecutor was incredulous. He questioned Ward on the stand about his statement to police and elicited from him that he had not mentioned duress to police, even though Armenta was not there when he spoke to them. Seems like a prime time to tell the cops about it.
The prosecutor highlighted this to the jury in closing too, suggesting the duress defense was a lie because he hadn’t raised it during his post-arrest interview with police.
The 10th Circuit said that was plain error. Even by Circuit precedent (in a case involving a silencer and an entrapment defense), Doyle applies.
Ward was advised of his Miranda rights (which warn people in custody that they have a constitutional right to remain silent). If Ward had said nothing, the prosecution could not have used his silence to imply guilt. The same is true about his partial silence, even though the information seems like the kind of thing an innocent person would’ve mentioned.
The prosecution tried to argue that it was simply pointing out inconsistencies, but no dice. There weren’t differences with what he had said to police. They were pointing out what he HADN’T said.
Ward gets a new trial.
You can read the opinion here: https://lnkd.in/gipNT5XS.
And if you don’t get the photo reference, check out this classic scene from The Wedding Singer: https://lnkd.in/guVXdTnx.