Right to remain silent during the investigation
- Trial counsel (or a government witness) cannot comment that an accused affirmatively invoked his rights during the investigation
- The fact that the accused during official questioning and in the exercise of rights under the Fifth Amendment or Article 31 remained silent, refused to answer certain questions, or requested counsel is inadmissible against the accused. M.R.E. 301(f)(3); United States v. Frentz , 21 M.J. 813 (N.M.C.M.R. 1985); United States v. Palumbo , 27 M.J. 565 (A.C.M.R. 1988).
- Non-verbal communication and silence.
- Trial counsel may not comment on pre-trial silence and physical responses to official questioning. Trial counsel may comment on out-of- court, non-verbal communication that is not in response to official questioning.
- The primary case in this area is United States v. Clark , 69 M.J. 438 (C.A.A.F. 2011). Clark established this framework: (1) Decide what type of “demeanor” is at issue. (Don’t confuse this with “in-court demeanor,” which is the response to questioning in the courtroom. That is discussed above.) (a) “Testimonial demeanor” is essentially pre-trial silence and physical responses to official questioning. This type of “demeanor” may not be commented on. Findings Argument (Art and Law) (i) A person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation. M.R.E. 304(h)(3). (ii) “A lack of response or reaction to an accusation is not ‘demeanor’ evidence, but a failure to speak.”
United States v. Alameda , 57 M.J. 190 (C.A.A.F. 2002). Fidell’s CAAF Rules GuideAfter an investigator informed the accused that he was going to be apprehended, the accused did not say anything and stared straight ahead. The investigator testified about that at trial and the trial counsel argued that this lack of response reflected his consciousness of guilt. The admission of the testimony and the argument was error.
But see United States v. Pope , 69 M.J. 328 (C.A.A.F. 2011). (b) “Non-testimonial demeanor” is essentially out-of-court, non-verbal communication that is not in response to official questioning. Provided this evidence is otherwise admissible, trial counsel may comment on it.
- See also United States v. Moran , 65 M.J. 178 (C.A.A.F. 2007) (without deciding error, the court found that comments on the accused’s invocation of rights was harmless beyond a reasonable doubt);
United States v. Flores , 69 M.J. 366 (C.A.A.F. 2011) (commenting that an accused has not been forthcoming of her version of the facts during the investigation, when the accused does not testify, is fraught with danger); see generally Mikah K. Story Thompson, Methinks the Lady Doth Protest Too Little, Reassessing the Probative Value of Silence , U. Louisville L. Rev. 21 (2008).
- Trial counsel may not comment on the failure of the defense to call witnesses or testify at the Article 32. R.C.M. 919(b) discussion.
- Trial counsel can comment on whether the accused makes inconsistent statements to investigators.
- If the accused makes inconsistent statements to investigators, the trial counsel may be able to argue that those statements show that the accused has not accepted responsibility for his actions. United States v. Garren, 53 M.J. 142 (2000).