Can silence before an arrest be used at trial? Supreme Court refuses case.

The appeal had asked the Supreme Court to examine whether the Fifth Amendment right against self-incrimination bars a prosecutor's use of a defendant's pre-arrest silence as evidence of guilt.

The US Supreme Court on Tuesday declined to take up the appeal of a Florida man serving 12 years in prison who says a prosecutor used his pre-arrest silence during police questioning as evidence against him at trial.

The appeal in Patrick Cannella v. Florida (11-278) had asked the justices to examine whether the Fifth Amendment right against self-incrimination bars a prosecutor’s use of a defendant’s pre-arrest silence as evidence of guilt in a jury trial.

The high court’s decision not to hear the case is not a ruling on the merits of the appeal, but it does allow Mr. Cannella’s underlying DUI manslaughter conviction to stand.

Police Miranda warnings include an explicit explanation that a criminal defendant “has a right to remain silent.” It also advises that anything said to police after the warning “can and will be used against you in court.”

But what happens when an individual who is given a Miranda warning agrees to answer some questions, but declines to answer others?

Cannella’s case raised an even narrower question: Once a defendant waives his right to remain silent, is he under an affirmative obligation to offer a complete confession to potential criminal activity – even when the police officer fails to ask the relevant question?

That’s what happened in Cannella’s case.

The appeal stemmed from a February 2007 car accident that involved a collision between Cannella’s truck and a car carrying two individuals. The two passengers in the other car were killed. Police on the scene asked Cannella some questions and took a blood sample, but did not charge him at that time.

Two days later, police questioned Cannella about the accident. They asked him to waive his right to remain silent. He did so and answered several questions.

At one point, the police officer asked whether there was any other detail of the collision that was significant.

Cannella told the officer: “It was pretty dark around there, so I don’t know.”

Among all the questions Cannella was asked, the officer never asked him if he had been drinking alcohol prior to the accident. The blood sample taken at the scene of the accident would not come back for several weeks. When it did, it indicated that Cannella’s blood alcohol level was more than twice the legal limit.

At trial, that test result was presented to the jury. But the prosecutor did not stop there. When the police officer was called to testify, he told the jury that he had asked Cannella whether anything else about the crash was significant.

The prosecutor then asked: “Did Mr. Cannella ever tell you up to this point or through the end of this interview that he had been drinking to the extent that he had a 0.199 blood alcohol level?”

The officer answered: “No ma’am.”

Cannella’s lawyer objected to this question, telling the trial judge the testimony amounted to an impermissible comment on the defendant’s right to remain silent. The judge disagreed and allowed the question.

The prosecutor responded by repeating the question: “And nowhere in this voluntary statement when you are asking him if there is any other significant things or important things we should know about this crash, does he ever tell you that he had consumed enough alcohol – or any alcohol, is that correct?”

The officer testified: “That is correct.”

The officer acknowledged during cross-examination that he never asked Cannella if he’d been drinking. He never raised the issue during the interview.

Nonetheless, the prosecutor sought to use Cannella’s failure to volunteer highly incriminating information to the police officer as evidence of his guilt.

Cannella’s lawyer later asked the trial judge for a mistrial based on the officer’s testimony and the alleged violation of his client’s Fifth Amendment rights. The judge dismissed the motion. A state appeals court upheld the conviction.

“The issue in this case is whether a criminal defendant’s pre-arrest silence can be used as substantive evidence by the prosecution at trial during the prosecution’s case in chief,” Cannella’s lawyer Michael Ufferman wrote in his brief to the Supreme Court. “This question has never been directly answered by the court.”

Florida prosecutors argued that Cannella answered some of the questions the officer asked and had already waived his Fifth Amendment right against self-incrimination.

“At no time did [Cannella] invoke his right not to incriminate himself,” Edward Hill of the Florida Attorney General’s Office said in his brief. “Thus, because he was not silent, this case does not present a situation where silence was used against a defendant.”

Mr. Hill added: “It was not [Cannella’s] silence that was used against him but his willingness to talk to the police and that fact that he gave an incomplete and inaccurate exculpatory statement.”

Hill also said, “A person who speaks to the police but leaves out relevant information cannot be said to have been silent.”

Such demeanor can be used to impeach a defendant who takes the stand and makes statements that might be inconsistent with earlier information given to police. The question in the Cannella case was whether a defendant’s failure to volunteer incriminating details could be used against that defendant, who, like Cannella, did not testify at his trial.

Federal appeals courts are split on the issue, Mr. Ufferman said. The First, Sixth, Seventh, and Tenth circuits have ruled that the use of pre-arrest silence as evidence of guilt violates the Fifth Amendment.

The Fifth, Ninth, and Eleventh circuits have ruled that it does not violate the right to silence, he said.

Florida prosecutors, Ufferman said, had relied in their brief on cases in which a defendant refused to answer a specific question. In contrast, Cannella was never asked a specific question or any other question about his consumption of alcohol.

“During a prearrest interview, the law enforcement officer did not even ask [Cannella] whether he had been drinking on the date in question. Had the question been asked, then [Cannella’s] refusal to answer the question may have been fair game,” Ufferman said. “But the right against self-incrimination precludes the prosecution from telling the jury that a defendant refused to disclose incriminating information during an interview when the law enforcement official failed to question [Cannella] about the incriminating information.”

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