The Constitution protects us when we make statements under police interrogation without being advised of our rights, or when we decide not to make any statements at all. One of the key rights stated in a Miranda warning is the right to remain silent. This right guarantees that a defendant will not be portrayed in a negative light before a jury simply for choosing not to respond to a question posed by police. But a Washington Court of Appeals recently ruled that a prosecutor is allowed to reference the defendant’s post-arrest silence because the reference to the defendant’s silence was not made with the intention proving the defendant’s guilt.

The Recent Case of Washington v. Price

In the matter of Washington v. Price, the defendant was pulled over by police after they observed him run a stop sign and hit a curb while turning. During the traffic stop, the officers noticed signs of intoxication and also discovered that he was operating with a suspended license. The officers then informed the defendant that he was under arrest, and ordered him to exit the vehicle. The defendant refused to comply, so the officers tazed the defendant.

As a result of the electric shock from the taser, the defendant began to have “seizure-like” symptoms, and was subsequently transported to a hospital by an ambulance. While at the hospital, the officers conducted a DUI interview per protocol after reading him his Miranda rights. Throughout the 30-question interview, the officers asked the defendant for various information, and the defendant answered voluntarily. But when the officers asked when, where and how much alcohol he had ingested that day, the defendant did not answer. He was then charged with a DUI and for driving with a suspended license.

During the defendant’s trial, the prosecutor called the officers to testify as to their observations of the defendant at the time of the stop, as well as to the responses provided by the defendant. But while the prosecutor did not prompt the officers to testify about the defendant’s silence in response to the questions but his alcohol consumption, the defendant’s attorney did raise his silence during cross-examination. Defense counsel elicited testimony that the defendant did not answer some of the questions in an attempt to persuade the jury that the defendant was still suffering from the shock of being tazed when the officers interviewed him at the hospital. During closing arguments, the prosecutor then referred to the defendant’s silence raised by his attorney, and argued that the defendant was not mentally debilitated by the tazer but was in fact thinking clearly enough to know when to answer and when to invoke his right to remain silent in order to avoid incriminating himself. The defendant was then convicted, and appealed his conviction accusing the prosecutor of misconduct for referencing his silence during closing arguments.

The Fifth Amendment Right to Remain Silent

The right to remain silent comes from the Fifth Amendment of the U.S. Constitution, which provides that no person shall be compelled to testify against himself. But despite its longstanding existence in the Bill of Rights, it was not until the mid-20th century that the Supreme Court elaborated on the actual protections that this Fifth Amendment right guarantees. In the early 1900’s, local and federal law enforcement agencies began to employ severe and brutal interrogation tactics that were physically and psychologically coercive in order to obtain confessions from their arrestees. But as these confessions were attacked by zealous defense lawyers on cross-examination, it became increasingly clear that this aggressive law enforcement frequently resulted in false confessions or inaccurate information from the interrogation subjects. This phenomenon was primarily due to the fact that interrogation subjects often believed in their desperation that providing information sought by their interrogators would end their pain sooner.

The Birth of Miranda Warnings

In 1966, the Supreme Court delivered its landmark opinion in the case of Miranda v. Arizona, explicitly rebuking police agencies for their aggressive tactics, and banning the admission of any evidence that resulted from such tactics. It is this Miranda decision that requires police to warn the defendant of his rights before the defendant is questioned (and if he is in a position where he reasonably feels as though he were not free to leave). Among these “Miranda warnings” is the right to remain silent – the right to refuse to answer any questions posed by police under those circumstances. If officers do not recite the Miranda warnings before questioning their arrestee, any statement made by the arrestee will not be admissible against the defendant in court to prove the defendant’s guilt.

Following the Miranda decision, the Supreme Court has also ruled that a prosecutor could never direct the jury’s attention to the fact that a defendant remained silent during police questioning. The Court reasoned that since a defendant has a right to remain silent, the jury will likely infer that the defendant chose to remain silent simply because he was conscious of his guilt. The premise is that if someone is innocent, he would feel free to answer any and all questions posed by police, and that it is only the guilty that refuse to answer in order to avoid incriminating themselves. Concerned that this incorrect inference would undermine the whole purpose of the Fifth Amendment right to remain silent, the Supreme Court forbade admission of any evidence by the prosecutor of the defendant’s lack of response to police questioning.

In this Washington case, the appellate court found that since the defendant’s own attorney was the first to reference his client’s silence, he effectively “opened the door” to the prosecution commenting on the silence as well. And since the prosecutor argued that the defendant’s silence was evidence of the defendant’s ability to think clearly (rather than the defendant’s consciousness of guilt), there was no prosecutorial misconduct. The prosecutor’s reference to the defendant’s silence in this manner was therefore permissible under the Fifth Amendment.

Police Opinion on Ultimate Issues

Another issue that arose both during trial and on appeal was the officer’s opinion testimony. During the State’s direct exam of the officer, the prosecutor asked the officer to state his opinion as to whether the defendant’s intoxication level was inhibited his ability to drive safely. The officer replied “In my opinion, he was too intoxicated to operate a vehicle.”

The defendant argued that this testimony was unlawful in that it was an opinion on the ultimate issue of fact that was supposed to be resolved by the jury alone – i.e. the question of whether the defendant was in fact intoxicated while operating his vehicle. Some state courts have held that these types of opinions are inadmissible because they come too close to the issue that is supposed to be determined by the jurors.

The Massachusetts Supreme Judicial Court, for example, specifically held that an officer’s opinion testimony that a defendant’s “ability to drive was diminished by his consumption of alcohol” is inadmissible. See Com. v. Canty, 466 Mass. 535 (2013). The court was concerned that a jury may be inclined to “bow” to the testifying officer’s opinion, as jurors often perceive officers as experts in law enforcement. But since the law charges jurors with the responsibility to independently weigh all of the evidence presented before it to reach its own conclusions as to the defendant’s guilt, exposing jurors to such testimony essentially undermines their fact-finding function.

The Washington trial court and the Washington Court of Appeals, however, both ruled that this testimony was permissible. According to the appellate court, while a witness may not opine as to the defendant’s guilt, this testimony was not a direct comment on guilt or innocence, and was purely based on the officer’s inferences from his own observations of the defendant. The court held that as long as the officer’s opinion testimony was based on the officer’s own observations and inferences, it was permissible testimony.

Winning on Appeal

While this evidence may be impermissible in Massachusetts trials, it is not necessarily the case that it would be enough to overturn a conviction on appeal. In Massachusetts, as in many other states, a defendant must demonstrate both an error in the trial proceeding, as well as harm that the defendant actually suffered as a result of this error. In many cases, while a prosecutor would make an improper statement (or a judge an improper ruling), appellate courts will refuse to overturn the conviction if there is clear evidence in the record to support a guilty verdict even if the erroneous evidence was never admitted in trial. It is a high standard for a defendant to meet, and many appeals fail to overturn a conviction because they do not persuade the appellate court that, but for the error, no rational juror would have found the defendant guilty beyond a reasonable doubt.