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Can my silence at the time of my arrest be used against me at trial?


No, silence at the time of arrest cannot be held against you. The courts have repeatedly held that prosecutors may not ask an accused about his post- arrest silence. Such questioning is a violation of one's Fifth Amendment right to remain silent. And this makes perfect sense. The first and most important Miranda warning, as we all know from watching TV crime dramas and movies is "You have the right to remain silent". So if an accused does remain silent, it follows that a prosecutor cannot ask that person on the witness stand, "Why did you remain silent when you were arrested and not tell the police what you are telling us now in court?" That prosecutors are not allowed to ask this question is one of the most basic rules of cross-examination. So it's surprising how often they get it wrong and do ask this question. I have seen it happen first hand as a Jacksonville criminal defense lawyer.

Consider the case of U.S. v. Shannon, decided by the 3rd. Circuit Court of Appeals on September 8, 2014. The Pennsylvania State Police and the D.E.A., working with confidential informants, identified a cocaine distributor and were able to observe part of a delivery of cocaine. The police observed a man back his car up to a tractor-trailer rig , open his trunk and then hand a bag full of packaged cash to Mr. Shannon, who was standing beside the rig. The cops moved in a discovered a bag containing a large amount of cocaine in the man's trunk. They also discovered over $700,000. in the bag given to Shannon, which he had placed in the cab of his truck, along with three different cell phones. Shannon, along with others, was charged with conspiracy to distribute and possess cocaine.

Shannon chose to go to trial. His defense was that he was simply caught in the wrong place at the wrong time. Shannon tried to explain that he needed three phones because one was his everyday phone, another was a work phone and yet another was used only to call his nephew. He further testified that he falsified his logbooks as a long-haul trucker in order to go visit his girlfriend. He even had an explanation for why he was associated with some of the drug dealers who were arrested along with him. The prosecutor then (foolishly) asked Shannon why he had not come forward earlier with these explanations when he was arrested. Even though Shannon's criminal defense lawyer objected (good job!) the trial judge overruled the objection and made Shannon explain his earlier silence. Shannon was convicted by the jury and sentenced to 240 months in prison (that's 20 years!). Shannon appealed his conviction.

The appeals court ruled that Shannon should not have been questioned about his post-arrest silence - it was a clear violation of his Fifth Amendment right to remain silent. It noted that it is fundamentally unfair to allow an arrested person's silence to be used against him at a trial. Silence, the court wrote, should carry no penalty. As a result, the court set aside Shannon's conviction.

Lesson Learned:

How is it that a federal prosecutor could make such an obvious mistake? In their zeal to get convictions, they don't always follow the rules. But how is it that a federal court judge could allow this type of questioning, even after the defense lawyer objected? It amazes me how often these types of mistakes and miscarriages of justice occur. Lucky for Mr. Shannon, he had a good criminal lawyer who knew the rules, objected right away and appealed his client's conviction. Lawyers must be constantly on watch to make sure their client's rights are not violated, before, during and after trial. Now, Mr. Shannon gets a new trial because the prosecutors just couldn't help themselves and went too far.

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