Filed November 18, 2015
In Wainwright v Greenfield, 474 US 284 (1986), the Supreme Court held it reversible error, violating the 14th Amendment's Due Process Clause, to use against a defendant his post-arrest, post-Miranda silence to overcome his insanity defense. The court rejected an attempt to distinguish Doyle v Ohio, 426 US. 610, supra: 32 The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant's plea of insanity.
Filed September 25, 2012
Neither affords the protection provided by the Court of Appeal below. 1. Doyle is inapplicable absent Miranda warnings First, Doyle and its progeny makeclear that substantive use of pre- Mirandasilence does notinfringe on a defendant’s due processright to a fair trial. As detailed above, Doyle’s invocation of fundamental fairness was predicated on the implied promise inherent in the Miranda warnings themselves that a defendant’s silence will not be used against him attrial. (Doyle, supra, 426 U.S. at p. 619.) Wainwright v. Greenfield, supra, explained: That this “fundamental unfairness” derives from the implicit assurances of the Miranda warningsis supported by our holdings that due processis not violated by the impeachmentuse of pre-Miranda warningssilence, either before arrest, Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), 27 or after arrest, Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), or of post-Miranda warningsstatements, Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980); noris it violated by the use of a refusal to take a state test that does not involve Miranda-like warnings, [South Dakota v.| Neville [(1983) 459 U.S. 553, 565]. (474 U.S. at p. 291 fn. 6.)
Filed June 22, 2009
It is fundamentally unfair and a deprivation of due process to use an arrested person's silence to impeach any explanation that is subsequently offered by them at trial. (Doyle v. Ohio, supra, 426 U.S. at p. 618.) That, however, is not what occurred in this case.
Filed April 19, 2011
Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” (Doyle, supra, 426 U.S. at p. 617.) Although Doyle involved a prosecutor’s impeachmentofa testifying defendant, its rationale is not limited to the use of silence as impeachment.
Filed January 31, 2007
(66 RT 5834.) In Doyle v. Ohio (1976) 426 U.S. 610, 619 [96 S.Ct. 2240, 49 L.Ed.2d 91] the court held the use of a defendant’s post-arrest silence after receiving a Miranda admonition for purposes of impeachment violated the Fourteenth Amendment right to due process. The court has explained that the Miranda warningscontain an implicit promise that silence will not be penalized.
Filed December 10, 2014
The Supreme Court itself has recognized the unfair, but predictable, prejudice that normally results from a witness’s invocation of the Fifth Amendment privilege: “[t]oo many, even those who 1 The County also cannot rely on Mr. Bozella’s decision not to testify for impeachment. See Doyle, 426 U.S. at 618 (noting that once a witness has been informed of her Fifth Amendment privilege, “it would be fundamentally unfair and a deprivation of due process to allow the . . . person’s silence to be used to impeach an explanation subsequently offered at trial”); 4-608 Weinstein’s Federal Evidence § 608.30 (“A witness may not be impeached by being asked whether he or she claimed the privilege against self-incrimination at an earlier time.”
Filed November 26, 2012
Thus, the Court held, as a matter of state law, that such evidence “is too ambiguous to be probative,” thereby “join[ing] the increasing numberofjurisdictions” that prohibit use ofsilence in the presence of police as proofof guilt. (/d. at pp. 1002, 1005; see Ex parte Marek (Ala. 1989) 556 So.2d 375, 382 [abolishing “tacit admission rule” which had permitted evidence of defendant’s pre-arrest silence to be used as evidence of guilt]; see also Doyle v. Ohio (1976) 426 U.S. 610, 617 [“every post-arrest silence is insolubly ambiguous”; United States v. Hale (1975) 422 U.S. 171, 180-181 [evidence of pre-arrest silence is excluded even for impeachmentin federal cases becauseits “significant potential for prejudice” outweighs probative value].) Thus, even setting aside that the issue here is controlled by the Court’s holding in Banks, the Attorney General’s attempt to convince the Court to join the minority view must fail because that view cannot withstand analysis.
Filed May 18, 2012
Further, the Supreme Court has clearly held that “[i]t is not proper . . . for the prosecutor to ask the jury to draw a direct inference of guilt from silence-to argue, in effect, that silence is inconsistent with innocence.” (Doyle v. Ohio (1976) 426 U.S. 610, 634- 635). As the state and the Court below point out, in Doyle, the defendant remainedsilent after receiving Miranda warnings. (Id.; see also Wainwright v. Greenfield (1986) 474 U.S. 284, 286-292 [prosecutor may not use post-Miranda silence or request for counsel in sanity phase]).
Filed April 14, 2009
XXII., XXIII. CUMULATIVE ERROR FOR PENALTY PHASE In argument XXII, appellant grouped together a series of errors that tended to reinforce the charge of shystering dishonesty against Mr. Ciraolo and the defense, and perjurious immorality against defendant and his witnesses. These errors included the direct imputations Ms. Backers made against defense counsel in argument (XVII); the contract to kill Tony Iuli, which existed only in Ms. Backers' over grasping theories rather than in competent and substantial evidence (XVIII); the Doyle (Doyle v. Ohio (1976) 426 U.S. 610) error, whose effect was to impute to defendant himself the manipulation of the criminal justice system (II); the trial court's prejudicial pleasantry at the expense of Tautai's credibility as a witness (IX); and finally, the incompetent opinion by Iuli that Tautai sold his 78 testimony to appellant (VI), coupled with the outright falsehood that he unsuccessfully tried to sell the contrary testimony to Ms. Backers (XI). (AOB, pp. 219-222.) Accumulated with all this, in argument XXIII, was Ms. Backers' vouching, which pervaded the case throughout and served prosecutorial purposes in the penalty as well as the guilt phase of trial (1, XVI); the pairing of appellant's trivial impropriety in wearing jail clothing with Richard Allen Davis's villainous and execrable insult to the jury condemning him (XX)~ the so-called gang list boasting of the murder of Nolan Pamintuan, all trumped up even in excess of Tony Iuli's monosyllabic assents to Ms. Backers' leading questions (X, XIX); Darryl Chur
Filed January 10, 2008
The trial court overruled defense counsel's timely objections to the line of inquiry, and permitted the prosecutor to argue the defendants' post-arrest silence to the jury. (Doyle, supra, 426 U.S. at pp. 613-615.) Thus, it is not simply the fact of the invocation of rights, but the use of that fact to draw a negative inference against the defendant, which deprives the defendant of due process.