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Fifth Amendment Right To Remain Silent And Cross-Examination Of Defendant.


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U.S. v. Shannon

United States Court of Appeals for the Third Circuit

2014 WL 4401054

Decided on: September 8, 2014

Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether Defendant’s Fifth Amendment right to remain silent was violated when the Government tried to impeach his credibility by cross-examining him about his post-arrest silence.

Summary: Defendant appeals his conviction and the sentence imposed on him by the District Court to the Third Circuit Court of Appeals. He contends that the Government violated his Fifth Amendment rights at trial by cross-examining him about his post-arrest silence. The Third Circuit Court of Appeals agreed that the Government violated his Constitutional right to remain silent, vacated his judgment and remanded for a new trial.

See Also: The Excited Utterance Exception To The Hearsay Rule: The Gun Whisperer

Holding: The Third Circuit Court of Appeals held that the Defendant’s Constitutional right to remain silent was violated when the Government questioned him about his post-arrest silence when he testified at trial. The Government failed to prove beyond a reasonable doubt that the error did not contribute to the verdict obtained which required the Court of Appeals to vacate the judgment of conviction and remand for a new trial.

The Fifth Amendment guarantee’s that no person shall be compelled in any criminal case to be a witness against himself.

Facts: Defendant Dudley Shannon was charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. At trial, the Government asked Defendant why he had not come forward earlier with his exculpatory version of the facts. Defense objected to the Government’s questions, stating that Defendant asserted his Fifth Amendment right to remain silent.

The Defendant appealed to the Third Circuit Court of Appeals arguing that his Fifth Amendment right was violated because the Government’s questioning about his post-arrest silence is alone enough to require that his conviction be set aside. The Third Circuit Court of Appeals stated that silence should carry no penalty because the primary purpose of Miranda warnings is to safeguard an arrested individual’s Fifth Amendment right to not speak to law enforcement authorities.

Legal Analysis: The Third Circuit Court of Appeals held that the Fifth Amendment is so fundamental to our system of Government that, in the landmark case of Miranda v. Arizona, 384 U.S. 436, 86 S.CT. 1602, the Supreme Court established the now famous rule that a Defendant must be informed upon arrest that he has the right to remain silent.

Because of the protections of the Fifth Amendment right to silence, it would be fundamentally unfair and a deprivation of Due Process to allow an arrested person’s silence to be used to impeach an explanation subsequently offered at trial, Doyle v. Ohio, 426 US 610.

The Third Circuit therefore held that the use for impeachment purposes of Defendant’s silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The Supreme Court has noted that silence should carry no penalty because the primary purpose of Miranda warnings is to safeguard an arrested individual’s Fifth Amendment right to not speak to law enforcement authorities, Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S.Ct. 634, 88 L.Ed.2d. 623 1986. When seeking to impeach a Defendant’s credibility, a Prosecutor thus violates the Fifth Amendment when he highlights the Defendant’s post-arrest silence.

A Defendant may, however, open himself up to questions about his post-arrest silence if he testified to an exculpatory version of events and claims to have told the police the same version upon arrest, Hassine v. Zimmerman, 160 F.3d, 941, 947-49 3rd Cir.1998. In that very limited circumstance, some inquiry is permitted to prevent a Defendant from misleading a fact-finder about his claimed cooperation with law enforcement. But the Third Circuit held that the foundation for such an inquiry is not easy to lay. The Court explained that, to open himself up to questions about his silence, is not enough for a Defendant’s later testimony to be ambiguous about his supposed cooperation. Instead, his earlier silence must appear to be an act blatantly inconsistent with his trial testimony, United States v. Fairchild, 505 F.2d 1378, 1382 5th Cir.1975.

Even when the Government wrongly cross-examines a Defendant about his post-arrest silence it does not mean that his conviction will necessarily be infirm. The error may still be harmless. The operative question becomes whether the Constitutional trial error was harmless beyond a reasonable doubt, Chapman v. California, 386 U.S 18, 24, 87 S.Ct, 824, 17 L.Ed.2d 705 1967.

The Third Circuit held, to sustain a conviction, the Government must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. The Court of Appeals held that they have previously determined that error of the sort condemned in Doyle, may be held harmless beyond a reasonable doubt in cases where there is overwhelming evidence against Defendant. But it is a decidedly heavy burden to demonstrate that reversal is not warranted, United States v. Waller, 654 F.3d 430, 438 3d Cir.2011.

In this case, the Third Circuit Court of Appeals held they must first determined whether, under Rule 103(a)(1)(B) of the Federal Rules of Evidence, Defendant properly objected to the Government’s cross-examination and preserved that objection so that we can exercise plenary review, or whether the Court only must review the alleged Doyle violation for plain error. Defense counsel’s consternation was fully justified, as the questions the Government asked Defendant are patently beyond the bounds set in Doyle and are examples of a Fifth Amendment violation.

The Court held that the obvious errors in the Government’s questioning created at trial, and the specific and repeated objections from Defendant’s attorney showed a Fifth Amendment violation. Even if the Government had, in fact, asked pages of questions regarding Defendant’s pre-arrest silence, the problem remains that it also asked inappropriate questions regarding Defendant’s post-arrest silence. Doyle does not establish a threshold quantity of improper questioning to qualify as a Constitutional violation. The Third Circuit Court of Appeals held that they must still determine whether the Government proved beyond a reasonable doubt that the error did not contribute to the verdict obtained.

When the Government fails to carry a burden of proof, the Third Circuit held that they must vacate the judgment of conviction and remand for a new trial. Because the Government’s questioning of Defendant about why he had not come forward earlier to the police, the Court of Appeals held they cannot say the constitutional error was harmless. Accordingly the Third Circuit Court of Appeals vacated the District Court’s judgment and remanded for a new trial.


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