Invoking the right to counsel.
31 Jenkins v. Anderson , 447 U.S. 231 (1980) (accused failed to inform police about his self-defense claim for at least two weeks after murder. Prosecutor used this silence in his cross-examination of the defendant and in his closing argument); Brecht v. Abrahamson , 507 U.S. 619 (1993) (defendant failed to tell anyone that the victim’s shooting was an accident prior to receipt of the warnings). See also State v. Easter , 922 P.2d 1285 (Wash. 1996) (finding that the accused’s pre-arrest silence cannot be used against him). In Easter , the accused was questioned at the accident scene, but he refused to answer any questions (not a custodial interrogation). During trial, the prosecutor argued that the accused’s silence indicated he was being evasive to avoid alcohol detection. The Washington Supreme Court held that an accused’s pre-arrest silence cannot be used against him/her. The court found that the right to silence is derived from the Fifth Amendment and not Miranda , and applies before an accused is in custody or is the subject of an investigation. United States v. Gilley , 56 M.J. 113 (C.A.A.F. 2001). The standard for determining whether mentioning an accused’s invocation of his right to counsel is improper is the same standard used for mentioning an accused’s invocation of his right to remain silent. Here, no reversible error where: 1) defense counsel first elicited evidence of his client’s invocation on cross-examination and did not object to the witness’s response; 2) defense’s theory “invited response” from trial counsel about accused’s invocation; and, 3) invocation was not used as substantive evidence against accused.