24 N.Y.3d 187 (2014)

Evidence of a defendant’s selective silence during custodial interrogation, where the defendant has waived their Miranda rights and agreed to speak to the police, is generally inadmissible in the prosecution’s case-in-chief to either infer guilt or impeach the defendant’s credibility if they do not testify.

Summary

In People v. DeWitt, the New York Court of Appeals addressed the admissibility of a defendant’s selective silence during a custodial interrogation, where the defendant had waived their Miranda rights. The Court held that it was error for the prosecution to present, as part of its case-in-chief, evidence of the defendant’s failure to answer certain questions asked during the interrogation. This violated established common-law evidentiary rules against introducing a defendant’s pretrial silence to infer guilt. The Court reversed the Appellate Division, finding the error was not harmless because the evidence of selective silence was prejudicial, and there was a significant risk that the jury would infer guilt from it.

Facts

The defendant, former boyfriend of the victim, was accused of rape. During custodial interrogation, after waiving his Miranda rights, the defendant was evasive. He admitted knowing the victim but either did not answer or repeated questions when asked about the incident. He did not deny having sex with the victim. The prosecution introduced evidence of his selective silence during the interview as part of its case-in-chief. The defendant did not testify at trial.

Procedural History

The defendant was convicted in County Court. The Appellate Division affirmed, finding the prosecutor’s comments and the admission of the detective’s testimony regarding the defendant’s selective silence were improper but harmless. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the prosecution improperly used evidence of the defendant’s selective silence during custodial interrogation as part of its case-in-chief.

2. Whether the trial court’s error in admitting the evidence of the defendant’s silence was harmless.

Holding

1. Yes, because the prosecution’s use of the defendant’s selective silence violated established rules of evidence.

2. No, because the error was not harmless.

Court’s Reasoning

The court relied on established precedent, particularly People v. Conyers, which held that, as a matter of state evidentiary law, a defendant’s pretrial silence is generally inadmissible. The court reasoned that a defendant’s silence is often ambiguous and has limited probative value, while it carries a significant risk that the jury will infer guilt. The court distinguished the case from exceptions where the defendant’s silence could be used for impeachment, such as in People v. Savage, where a defendant’s prior inconsistent statement could be used to challenge their testimony. The Court found that the prosecutor’s use of the selective silence during their case-in-chief, prior to the defendant’s grand jury testimony, was improper. The court emphasized that a defendant’s selective silence is of