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Prosecution’s Comments on Defendant’s Post Arrest Silence Constitute Reversible Error

People v. Tucker Appellate Division, Second Department 2011 NY Slip Op 06575

Decided on September 20, 2011


Whether reference to the defendant’s post arrest silence in the prosecutor’s cross examination of defendant and during the prosecutor’s closing arguments when prosecutor stated that “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.” constitutes prejudice and reversible error.


The Appellate Division, Second Department held that the repeated reference to defendant’s post arrest silence during cross examination of defendant and during closing arguments was overly prejudicial and warranted a new trial.


Upon the defendant’s arrest in connection with a shooting incident, he was read his Miranda rights (see Miranda v Arizona, 384 US 436), and asked whether he was willing to answer any questions. The defendant responded “no.” When a police officer subsequently told the defendant that he would be charged with two counts of attempted murder, the defendant stated that he was present at the shooting, but did not shoot anyone. No further statements were made. At trial, the defendant testified in his defense, admitting that he had been present during the incident, and identifying the shooter as his friend “Mustafa.” On cross-examination, the People asked the defendant multiple times whether he had told the police, after his arrest, that Mustafa was the shooter. Additionally, the prosecutor mentioned in closing arguments that the remained silent and said “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.”

Legal Analysis:

We find this case to be squarely controlled by this Court’s decisions in People v Santiago (119 AD2d 755) and People v Torres (111 AD2d 885).  in Santiago, the defendant spoke to the police upon his arrest merely to deny his involvement in the shooting, and in Torres, the defendant spoke to the arresting officer, denying his guilt and stating that he knew that one of the complainants had recognized him (see People v Santiago, 119 AD2d at 776; People v Torres, 111 AD2d at 886). In both cases, this Court determined that the defendants’ statements were not “tantamount to the waiver of [the] right to remain silent so as to render the Conyers proscription [against use of post-arrest silence for impeachment purposes] inapplicable” (People v Santiago, 119 AD2d at 776; People v Torres, 111 AD2d at 886).

Here, as in Santiago and Torres, and unlike Savage, upon his arrest and the administration of Miranda warnings, the defendant did not express his desire or willingness to speak to the police. When asked whether he would do so, the defendant responded “no.” Nor did he inculpate himself in the shooting or narrate the circumstances of the shooting to the police. He merely denied his role in the incident (although admitting his presence) in a general manner.

A defendant’s post-arrest silence generally cannot be used for impeachment purposes (see People v Conyers, 52 NY2d 454; People v Fox, 60 AD3d 966, 967; People v Mejia, 256 AD2d 422; People v Blacks, 221 AD2d 351; People v Spinelli, 214 AD2d 135, 139). It is “fundamentally unfair” to assure a defendant that his silence will not be used against him and then to use that silence to impeach his subsequent trial testimony (People v Spinelli, 214 AD2d at 139; see Brecht v Abrahamson, 507 US 619, 628; Doyle v Ohio, 426 US 610). Moreover, “an individual’s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative [*2]worth” while “the risk of prejudice is substantial” (People v Conyers, 52 NY2d at 458, 459; see People v Savage, 50 NY2d 673, 677-678,cert denied 449 US 1016; People v Spinelli, 214 AD2d at 139-140; People v Haines, 139 AD2d 591, 592). This is because an individual’s silence may be attributable to “a variety of innocent circumstances that are completely unrelated to the truth or falsity of his testimony;” such as “his awareness that he is under no obligation to speak or . . . the natural caution that arises from his knowledge that anything he says might later be used against him at trial” (People v Conyers, 52 NY2d at 458).

While a defendant’s credibility may be impeached with a significant omission when, instead of invoking his right to remain silent, he chooses to speak to the police about the crime (see People v Savage,50 NY2d at 678-679; People v Fox, 60 AD3d at 967; People v Prashad, 46 AD3d 844People v Blacks, 221 AD2d 351), here, as the People correctly concede, the defendant expressly invoked his right to remain silent.

The Court of Appeals has recognized that “evidence of a defendant’s pretrial silence may have a disproportionate impact upon the minds of the jurors” (People v Conyers, 52 NY2d at 459; see People v Livingston, 128 AD2d 645, 646). Further, the error in cross-examination was compounded by the prosecutor’s repeated reference to the defendant’s post-arrest silence during summation, including her statement that “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.”

Under these circumstances, we conclude that a new trial is warranted.