Articles Posted in Constitution

Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection.   Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments.   This is a particular bugaboo of my when LE agents and trial counsel stray from the correct path.  This involves judgment and discretion on whether to object.

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)

It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g.Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Result – statements suppressed, and will be in the 9th because of Sessoms v. Runnels, No. 08-17790, 2012 U.S. App. LEXIS 17206 (9th Cir. 2012)  Wow.  What about Davis v. United States?

Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights.  So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.

Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and  Berghuis  remains: Sessoms made his statements before he was informed of his rights under  Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be  “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445.  As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s  “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).

Frankly this is a real world interaction and accounts for real world talk not fully appreciated, or perhaps ignored in Davis.  The police here did what they often do and told the accused that having a lawyer wouldn’t help.  True, it’s the 9th, the most slapped down circuit.

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date?  Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause.  See Calder v. Bull, 100 U.S. 1 (1798).

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Here is Prof. Colin Miller TG’s blog on the retroactive application of FRE 413-414.