The United States Constitution, the Florida Constitution, and case law give an accused the absolute right to remain silent when faced with questioning from law enforcement regarding crimes that person is suspected of committing. In order to safeguard this right, the United States Supreme Court requires law enforcement to read suspects their “Miranda” rights prior to custodial interrogation. They are called “Miranda” rights because they first appeared in case called Miranda v. Arizona, 384 U.S. 436 (1966). These rights include 1) the right to remain silent, 2) the right to an attorney before and during questing, 3) the right to an appointed attorney if a person cannot afford one.
However, these rights do not come into play unless two other circumstances have occurred, specifically: 1) the suspect must be in custody and 2) the suspect must be subject to interrogation. The terms “custody” and “interrogation” are both terms of art and could sustain entire articles in their own right. As such, we will not go into them in detail. For the purposes of our discussion, we’ll just use common concepts of arrest and questioning by law enforcement.
Many times, clients will come to us and they will tell us that their rights were not read to them and that their charges should be dismissed. Unfortunately, that is not how it works. Assuming that the person was in custody and subject to interrogation, the failure of law enforcement to read Miranda does not result in the automatic dismissal of charges. What it does require is suppression (in other words, exclusion from evidence) of any statements made by the defendant/suspect. If this evidence is necessary for the State to have a successful prosecution, suppression of the evidence can result in a dismissal. In most cases, however, the State simply proceeds with its case without the benefit of the excluded statements.
When faced with allegations of criminal conduct, it is almost always preferable to remain silent. While some people may think that remaining silent looks worse, it only looks worse, possibly, to the cop or prosecutor. A jury should never hear about a suspect’s invocation of their right to remain silent. In order to protect this right, Courts have disallowed prosecutors from commenting on the fact that a defendant invoked this right when faced with such questioning.
In Geissler v. State, 90 So.3d 941 (Fla. 2nd DCA 2012), Geissler had been arrested on suspicion of sexual abuse against a girl under the age of 12. The detective working the case went to speak with Geissler at the jail regarding this alleged assault. At some point during the interrogation, Geissler invoked his right to remain silent and to not proceed any further without the presence of an attorney. At Geissler’s trial, the prosecutor mentioned in her opening statement that Geissler failed to deny any of the child’s allegations as described by the detective and she proceeded to quote Geissler by telling the jury, “What [Mr. Geissler] actually says is, I can’t say any more because if I do I’ll get in more trouble.”
Additionally, the detective testified at the trial concerning his jailhouse interview with Mr. Geissler. The detective testified that after he recounted M.D.’s allegations concerning the sexual abuse, Mr. Geissler did not specifically deny them.
The third reference occurred during the prosecutor’s cross-examination of Mr. Geissler. The prosecutor reminded the jury that Mr. Geissler had exercised his Fifth Amendment right to remain silent with the following question: “And at some point after the detective kept asking you what else happened, you ultimately said that you didn’t want to say anything else because if you do you’re going to get in more trouble, correct?” Once again, defense counsel’s objection was overruled, and Mr. Geissler was forced to acknowledge before the jury that he had exercised his right to refuse to answer any more of the detective’s questions.
The prosecutor returned to the issue a fourth time in the rebuttal portion of her closing statement.
Under Miranda v. Arizona, 384 U.S. 436 (1966), “comment on an accused’s post-arrest silence is constitutional error.” State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986). The Supreme Court of Florida recently addressed the problem of improper testimony and comments that undermine and violate an accused’s right to remain silent as follows:
Unlike some evidentiary errors, such as the admission of a cumulative or irrelevant photograph, a comment on the right to remain silent strikes at the heart of our criminal justice system. This Court has clearly stated that it is constitutional error to penalize an individual for exercising the Fifth Amendment privilege; therefore, the prosecution may not introduce during trial the fact that an individual has relied upon this protection in the face of accusation. See Simpson v. State, 418 So. 2d 984, 984-85 (Fla. 1982) (quoting Jones v. State, 200 So. 2d 574, 576 (Fla. 3d DCA 1967)); see also DiGuilio, 491 So. 2d at 1131. As we stated in DiGuilio:
It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict and that an appellate court, or even the trial court, is likely to find that the comment is harmful under Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed. 2d 705 (1967)].
491 So. 2d at 1136-37. Accordingly, commenting on the silence of an accused is not a viable strategy for obtaining convictions, and any comment — direct or indirect — by anyone at trial on this right is constitutional error that should be avoided. See DiGuilio, 491 So. 2d at 1136, 1139.
Ventura v. State, 29 So. 3d 1086, 1088-89 (Fla. 2010) (alteration in original). “[C]ourts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.” State v. Smith, 573 So. 2d 306, 317 (Fla. 1990).
Finally, even if a suspect has waived his or her Miranda rights, that person can reassert those rights and end questioning. However, a suspect must unambiguously reassert those after voluntary waiver. Shorter v. State, 98 So.3d 685 (Fla. 4th DCA 2012).
If have additional questions about your Miranda rights or any criminal defense matter, call the criminal defense lawyers at Brandon Legal Group today for your free consultation.
However, these rights do not come into play unless two other circumstances have occurred, specifically: 1) the suspect must be in custody and 2) the suspect must be subject to interrogation. The terms “custody” and “interrogation” are both terms of art and could sustain entire articles in their own right. As such, we will not go into them in detail. For the purposes of our discussion, we’ll just use common concepts of arrest and questioning by law enforcement.
Many times, clients will come to us and they will tell us that their rights were not read to them and that their charges should be dismissed. Unfortunately, that is not how it works. Assuming that the person was in custody and subject to interrogation, the failure of law enforcement to read Miranda does not result in the automatic dismissal of charges. What it does require is suppression (in other words, exclusion from evidence) of any statements made by the defendant/suspect. If this evidence is necessary for the State to have a successful prosecution, suppression of the evidence can result in a dismissal. In most cases, however, the State simply proceeds with its case without the benefit of the excluded statements.
When faced with allegations of criminal conduct, it is almost always preferable to remain silent. While some people may think that remaining silent looks worse, it only looks worse, possibly, to the cop or prosecutor. A jury should never hear about a suspect’s invocation of their right to remain silent. In order to protect this right, Courts have disallowed prosecutors from commenting on the fact that a defendant invoked this right when faced with such questioning.
In Geissler v. State, 90 So.3d 941 (Fla. 2nd DCA 2012), Geissler had been arrested on suspicion of sexual abuse against a girl under the age of 12. The detective working the case went to speak with Geissler at the jail regarding this alleged assault. At some point during the interrogation, Geissler invoked his right to remain silent and to not proceed any further without the presence of an attorney. At Geissler’s trial, the prosecutor mentioned in her opening statement that Geissler failed to deny any of the child’s allegations as described by the detective and she proceeded to quote Geissler by telling the jury, “What [Mr. Geissler] actually says is, I can’t say any more because if I do I’ll get in more trouble.”
Additionally, the detective testified at the trial concerning his jailhouse interview with Mr. Geissler. The detective testified that after he recounted M.D.’s allegations concerning the sexual abuse, Mr. Geissler did not specifically deny them.
The third reference occurred during the prosecutor’s cross-examination of Mr. Geissler. The prosecutor reminded the jury that Mr. Geissler had exercised his Fifth Amendment right to remain silent with the following question: “And at some point after the detective kept asking you what else happened, you ultimately said that you didn’t want to say anything else because if you do you’re going to get in more trouble, correct?” Once again, defense counsel’s objection was overruled, and Mr. Geissler was forced to acknowledge before the jury that he had exercised his right to refuse to answer any more of the detective’s questions.
The prosecutor returned to the issue a fourth time in the rebuttal portion of her closing statement.
Under Miranda v. Arizona, 384 U.S. 436 (1966), “comment on an accused’s post-arrest silence is constitutional error.” State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986). The Supreme Court of Florida recently addressed the problem of improper testimony and comments that undermine and violate an accused’s right to remain silent as follows:
Unlike some evidentiary errors, such as the admission of a cumulative or irrelevant photograph, a comment on the right to remain silent strikes at the heart of our criminal justice system. This Court has clearly stated that it is constitutional error to penalize an individual for exercising the Fifth Amendment privilege; therefore, the prosecution may not introduce during trial the fact that an individual has relied upon this protection in the face of accusation. See Simpson v. State, 418 So. 2d 984, 984-85 (Fla. 1982) (quoting Jones v. State, 200 So. 2d 574, 576 (Fla. 3d DCA 1967)); see also DiGuilio, 491 So. 2d at 1131. As we stated in DiGuilio:
It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict and that an appellate court, or even the trial court, is likely to find that the comment is harmful under Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed. 2d 705 (1967)].
491 So. 2d at 1136-37. Accordingly, commenting on the silence of an accused is not a viable strategy for obtaining convictions, and any comment — direct or indirect — by anyone at trial on this right is constitutional error that should be avoided. See DiGuilio, 491 So. 2d at 1136, 1139.
Ventura v. State, 29 So. 3d 1086, 1088-89 (Fla. 2010) (alteration in original). “[C]ourts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.” State v. Smith, 573 So. 2d 306, 317 (Fla. 1990).
Finally, even if a suspect has waived his or her Miranda rights, that person can reassert those rights and end questioning. However, a suspect must unambiguously reassert those after voluntary waiver. Shorter v. State, 98 So.3d 685 (Fla. 4th DCA 2012).
If have additional questions about your Miranda rights or any criminal defense matter, call the criminal defense lawyers at Brandon Legal Group today for your free consultation.
