Silence after warnings

  1. bestmilitarydefensedefenseattorneysvictoryundone-waddington-smallcopyDoyle v. Ohio , 426 U.S. 610 (1976). Use of accused’s silence after Miranda warning to impeach later trial testimony as a fabrication violates due process.
  2. United States v. Riley , 47 M.J. 276 (C.A.A.F. 1997). Under the circumstances of the case (no defense objection, no instruction to members regarding improper introduction of evidence, and weak evidence), admission of testimony by an investigator regarding the accused’s invocation of the privilege against self- incrimination during questioning constituted plain error.
  3. United States v. Sidwell , 51 M.J. 262 (C.A.A.F. 1999). When asked by the trial counsel what statements the accused made, the witness testified that the accused invoked “his rights.” Defense counsel immediately objected and moved for a mistrial. Although the military judge denied the defense motion, he did strike the witnesses testimony, gave several curative instructions, and questioned the members to ensure they understood the instructions. The CAAF determined that error occurred, but considering the corrective action taken by the military judge and the facts of the case, the error was harmless. Cf. United States v. Riley , 47 M.J. 276 (C.A.A.F. 1997).
  4. United States v. Miller , 48 M.J. 811 (N-M. Ct. Crim. App. 1998). Relying on Riley, the NMCCA held that the admission of the investigator’s testimony that the accused terminated the interrogation materially prejudiced the substantial rights of the accused. The court also noted that the military judge failed to take the necessary steps to remedy the prejudice.


United States v. Miller