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Silence before warnings
- Mil. R. Evid. 304(h)(3). “Certain admissions by silence. A person’s failure to deny an accusation of wrongdoing [while] . . . under official investigation . . . does not support an inference of an admission of the truth of the accusation.”
- United States v. Cook , 48 M.J. 236 (C.A.A.F. 1998). After being arrested and questioned by OSI investigators about a rape allegation, the accused went to a friend’s house. The friend asked the accused if he committed the rape. The accused did not respond. At trial, the prosecution introduced this evidence and argued that the accused’s failure to deny the allegation indicated guilt. The CAAF held that this evidence was irrelevant under Mil. R. Evid. 304(h)(3), even when the one asking the questions was a friend who was inquiring out of personal curiosity. The CAAF also held that the start of the OSI investigation was the triggering event for the Mil. R. Evid. 304(h)(3) protections.
- United States v. Alameda , 57 M.J. 190 (C.A.A.F. 2002). Appellant’s silence upon being informed that he was being apprehended for an “alleged assault” was not relevant since appellant had a history of domestic violence, including an incident two weeks prior to the attempted murder incident, therefore his failure to deny one or more of the “alleged assaults” to the arresting officer does not support an inference of guilt and is therefore not relevant. Since the military judge’s admission into evidence of the appellant’s silence was error, trial counsel’s use of it in his closing argument was also error. Additionally, the military judge’s instructions to the panel were “off the mark,” since they only dealt with the appellant’s silence at trial, and may have actually exacerbated the problem by indicating to panel members, by omission, that they could draw an adverse inference from appellant’s silence during his apprehension.
- United States v. Ruiz , 50 M.J. 518 (A.F. Ct. Crim. App. 1999), aff’d , 54 M.J. 138 (C.A.A.F. 2000). During cross-examination of the accused, the trial counsel questioned him about his failure to proclaim his innocence when confronted by investigators. The AFCCA held that under the circumstances, the questioning by trial counsel did not violate Mil. R. Evid. 304(h), because it was designed to highlight the differences between the testimonies of the prosecution witnesses and of the accused.
- Use of accused’s pre-arrest, pre- Miranda warning silence to impeach later trial testimony on self-defense is permissible.31
- Use of accused’s post-arrest, pre- Miranda warning silence to impeach trial testimony on self-defense is permissible; rules of evidence may address. See Fletcher v. Weir , 455 U.S. 603 (1982).