New York Law Review

Tag: Post-arrest silence

  • People v. Pavone, No. 199 (N.Y. 2015): New York State Constitutional Protection Against the Use of Post-Arrest Silence

    People v. Pavone, No. 199 (N.Y. Dec. 17, 2015)

    The use of a defendant’s silence after being Mirandized, to challenge his credibility regarding a potential defense, violates the due process clause of the New York State Constitution.

    Summary

    Anthony Pavone was convicted of first-degree murder. At trial, he presented an extreme emotional disturbance (EED) defense. The prosecution used Pavone’s post-Miranda silence to challenge his credibility regarding the EED defense. The Court of Appeals of New York held that this violated the New York State Constitution’s due process clause because it penalized Pavone for exercising his right to remain silent, as guaranteed by the state constitution. Although the court found constitutional error, it held that the error was harmless because the evidence against the EED defense was overwhelming. The court also rejected Pavone’s claims of ineffective assistance of counsel.

    Facts

    Pavone shot and killed his former lover, Patricia Howard, and her new partner, Timothy Carter. Pavone admitted to the shootings, but he claimed he was acting under an EED, stating he was in a state of depression and lost rational control. The prosecution presented evidence that Pavone had stalked Howard, left her several messages, and was jealous of her relationship with Carter. Evidence included phone messages, forensic evidence, and witness testimony. The prosecution also highlighted Pavone’s actions after the murders, including fleeing the scene, removing the battery from his phone, and surrendering to police after a period of time. Expert testimony was presented by both sides regarding Pavone’s mental state.

    Procedural History

    Pavone was convicted on all charges at trial. The Appellate Division affirmed the conviction, concluding that the admission of the testimony regarding Pavone’s post-Miranda silence was harmless error, and that he failed to establish his EED defense. The dissent argued that the evidence against the EED defense was not so overwhelming to support a conclusion that there was no reasonable possibility that use of defendant’s silence affected the jury’s rejection of the defense. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the prosecution’s use of Pavone’s post-arrest silence to challenge his credibility violated his constitutional rights.
    2. Whether Pavone received ineffective assistance of counsel due to counsel’s failure to object to the use of his silence and failure to provide expert witnesses with recordings.

    Holding

    1. Yes, because using a defendant’s post-Miranda silence to challenge the credibility of his defense violates the New York State Constitution’s due process protections.
    2. No, because Pavone received meaningful representation under the state constitution.

    Court’s Reasoning

    The court found that the New York State Constitution provides broader protections than the Federal Constitution in cases involving individual rights. The court cited New York’s long-standing rule that a defendant’s silence at the time of arrest cannot be used against him. The court held that the implied promise in Miranda warnings that a defendant’s silence will not be used against him is a violation of due process under the state constitution. The court reasoned that a defendant’s silence has ambiguous probative value, and the prejudice to the defendant in such circumstances outweighs any probative value. Although the court found constitutional error, it held that the error was harmless, as there was overwhelming evidence that Pavone did not suffer from EED at the time of the murders. The court also found no merit in Pavone’s ineffective assistance of counsel claims, concluding that counsel’s actions were strategic choices and did not prejudice the defense.

    Practical Implications

    This case emphasizes that, in New York, prosecutors cannot use a defendant’s post-arrest silence, even for impeachment purposes, as it violates the state’s due process protections. This ruling requires attorneys to be vigilant in objecting to any attempt by the prosecution to introduce such evidence. Additionally, defense attorneys must be mindful of how their actions might be perceived if a defendant’s silence is brought up at trial. This decision also clarifies that a defendant does not open the door to questions about post-Miranda silence just by stating that his or her memory is affected by the trauma of events. This case underscores the broader protections afforded by the New York State Constitution.

  • People v. De George, 87 N.Y.2d 824 (1995): Preserving Objections for Appellate Review

    People v. De George, 87 N.Y.2d 824 (1995)

    To preserve an issue for appellate review in New York, a defendant must raise the specific legal theory at trial; a general objection is insufficient.

    Summary

    Defendant was convicted of robbery. At trial, the prosecution presented evidence that, after waiving his Miranda rights and providing two alibis, the defendant remained silent when confronted with information contradicting those alibis. The defendant only objected to the evidence refuting the second alibi on hearsay grounds. On appeal, the defendant argued that the admission of testimony regarding his silence violated his constitutional right to remain silent and state evidentiary principles. The New York Court of Appeals affirmed the conviction, holding that the defendant failed to preserve these specific arguments for appellate review because he did not raise them before the trial court.

    Facts

    The defendant was charged with robbery and, after being advised of his Miranda rights, provided two different alibis to the investigating officer. When confronted with information contradicting each alibi, the defendant remained silent. At trial, the prosecution introduced testimony regarding the defendant’s silence after the first alibi was contradicted without objection. When the prosecution sought to introduce testimony refuting the second alibi, the defendant objected on hearsay grounds, arguing that the individual who provided information to the police officer should be the one to testify. The trial court provided a curative instruction, stating the testimony was admitted to show the defendant’s state of mind, not for its truth. The prosecutor then elicited testimony, without objection, that the defendant did not respond when confronted with information contradicting his second alibi.

    Procedural History

    The defendant was convicted of robbery at trial. He appealed, arguing that the admission of testimony regarding his silence violated his constitutional right to remain silent and state evidentiary principles. The lower courts rejected the defendant’s claims. The New York Court of Appeals then reviewed the case.

    Issue(s)

    Whether the defendant preserved for appellate review the argument that the admission of testimony regarding his silence violated his constitutional right to remain silent and state evidentiary principles, when his only objection at trial was on hearsay grounds.

    Holding

    No, because the defendant failed to raise the specific legal theories regarding his right to silence and state evidentiary principles before the trial court.

    Court’s Reasoning

    The Court of Appeals held that the defendant’s claims regarding the violation of his right to silence and state evidentiary principles were not preserved for appellate review because he did not raise these specific arguments before the trial court. The Court emphasized the importance of CPL 470.05 [2], which requires a party to specifically raise an issue at trial in order to preserve it for appeal. The court cited People v. Gonzalez, 55 NY2d 720, 722. The Court reasoned that a general objection, such as the hearsay objection raised in this case, is insufficient to preserve a different legal theory for appeal. By failing to specifically argue that the testimony violated his constitutional right to silence or state evidentiary principles, the defendant deprived the trial court of the opportunity to address those specific issues and potentially avoid the alleged error. The court emphasized the need for specific objections to allow the trial court to make informed decisions and correct any potential errors in a timely manner. The Court’s decision highlights the importance of raising specific legal arguments at trial to preserve them for appellate review, ensuring that the trial court has the opportunity to address and rule on those issues in the first instance.

  • People v. Davis, 61 N.Y.2d 202 (1984): Use of Post-Arrest Silence When Defendant Testifies to It

    People v. Davis, 61 N.Y.2d 202 (1984)

    A prosecutor’s comments on a defendant’s post-arrest silence are permissible when the defendant testifies about that silence and contradicts prosecution witnesses regarding statements made at the time of arrest.

    Summary

    Davis was convicted of attempted murder and weapons charges. At trial, police testified that Davis made inculpatory statements upon arrest, while Davis testified he remained silent. The prosecutor, during summation, challenged Davis’s credibility based on this alleged silence. The Court of Appeals affirmed the conviction, holding that because Davis testified about his silence, contradicting the prosecution’s witnesses, the prosecutor’s comments were permissible and did not violate the rule against using post-arrest silence for impeachment established in People v. Conyers. A curative instruction, though not given due to the defendant’s objection, could have further mitigated any potential prejudice.

    Facts

    Police were called to an apartment building after John Puig reported that Davis was carrying a revolver. There was an outstanding warrant for Davis’s arrest. When Davis emerged, Puig alerted the police, and Davis fled. After a chase and an exchange of gunfire, Davis was wounded and arrested. At trial, police testified that Davis stated, “I should have killed you when I had the chance,” and spat on an officer’s shoe. Davis testified that he believed his pursuers were Puig’s friends, not police, and he fired out of fear. He claimed he said nothing to the police at the time of his arrest.

    Procedural History

    Davis was convicted of attempted murder in the second degree, attempted assault in the first degree, and criminal possession of a weapon. He appealed, arguing that the prosecutor improperly used his post-arrest silence against him during summation. The Appellate Division affirmed the conviction. Davis then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecutor’s comments during summation regarding Davis’s post-arrest silence constituted reversible error, given that Davis testified about his silence and contradicted the prosecution’s witnesses regarding statements made at the time of his arrest.

    Holding

    No, because Davis testified about his post-arrest silence, contradicting the prosecution’s witnesses, and the prosecutor’s comments concerned a key issue of fact: whether Davis made the incriminating statements attributed to him by the police.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Conyers, where it was undisputed that the defendant remained silent. In Conyers, the Court held that the defendant’s silence at the time of arrest was ambiguous and inadmissible to impeach later exculpatory testimony. Here, the Court emphasized that Davis himself testified about his silence, directly contradicting the officers’ testimony that he made inculpatory statements. Therefore, the prosecutor’s comments were not an attempt to use the *fact* of Davis’s silence against him, but rather to challenge the *veracity* of his testimony regarding his silence. The Court noted that while the prosecutor’s comments improperly invited the jury to draw an inference of guilt from Davis’s testimony, a curative instruction could have mitigated the prejudice. However, Davis objected to such an instruction, precluding him from using its absence as grounds for appeal. The Court stated, “[T]his is not a case, like Conyers, where the prosecution tried to use evidence of the fact of a defendant’s postarrest silence against him by contending that such silence itself renders a later exculpatory version of events incredible.” The key distinction is that Davis opened the door by testifying about his silence, making it a contested issue of fact. The court concluded that, “Given these circumstances, the mistrial demanded by defendant was in no event required.”

  • People v. Conyers, 35 N.Y.2d 339 (1974): Impeachment by Prior Inconsistent Silence

    People v. Conyers, 35 N.Y.2d 339 (1974)

    A defendant’s prior silence, inconsistent with their trial testimony and under circumstances where one would naturally speak, is admissible for impeachment purposes on cross-examination, even if that silence occurred after arrest.

    Summary

    Conyers, a police officer, was convicted of grand larceny and attempted grand larceny by extortion. At trial, he claimed the victim was attempting to bribe him, and he was setting the victim up for bribery charges. The prosecution cross-examined Conyers about whether he had reported the alleged bribery attempt to his superiors before or after his arrest. He had not. The New York Court of Appeals held that this cross-examination about his silence was permissible for impeachment purposes because it was inconsistent with his defense and a law enforcement officer would naturally report such a bribe attempt.

    Facts

    Defendant Conyers, a narcotics officer, and other officers entered Geraldine Williams’ apartment with a search warrant. They threatened to arrest her and take away her children unless she called William Mathis, Sr. (Mathis) to arrange for him to come to the apartment. Upon Mathis’s arrival, Conyers demanded $6,000 from him, threatening to arrest Williams if he did not comply. Mathis paid the money, and Conyers left.

    Later, Conyers contacted Mathis again, claiming to need to locate Mathis’s son for a narcotics investigation. Conyers offered to “smooth this thing over” for $12,000. Mathis reported these events to the police, who instructed him to meet with Conyers and agree to pay the money in installments. At the arranged meeting, Mathis gave Conyers $280 in marked bills. Officers then entered and arrested Conyers.

    Procedural History

    Conyers was convicted of grand larceny and attempted grand larceny. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal to determine if the prosecutor improperly questioned Conyers regarding his post-arrest silence.

    Issue(s)

    Whether the prosecution could properly cross-examine the defendant, a police officer, about his failure to report the alleged bribery attempt by the victim to his superiors, both before and after his arrest, when the defendant claimed at trial that he was setting up the victim for bribery.

    Holding

    Yes, because the defendant’s silence was patently inconsistent with the defense he asserted at trial, and as a law enforcement officer, he had a duty to report the alleged bribery attempt, thus making the silence probative of his credibility.

    Court’s Reasoning

    The court distinguished this case from the general rule that a defendant’s silence after arrest cannot be used against them, citing People v. Rutigliano, 261 N.Y. 103, and Miranda v. Arizona, 384 U.S. 436. The court reasoned that the purpose of the Miranda rule is to protect against prosecutorial attacks using admissions obtained when one is not under a duty to speak. However, Harris v. New York, 401 U.S. 222, established that Miranda cannot be used as a license to commit perjury. Here, the inquiry occurred on cross-examination after the defendant testified he was setting up the victim for bribery.

    The court emphasized the inconsistency between Conyers’s silence and his defense. “The natural consequences of his status as a law enforcement officer would require him to promptly report any bribe or attempted bribe to his superiors, and certainly protest and reveal such an alleged scheme after his arrest to them, and to his fellow officers as well.” The court found that Conyers’s testimony was diametrically opposed to the prosecution’s evidence, making his credibility the central issue. His silence was, therefore, a proper subject for cross-examination to assess his credibility. The court specifically noted, “[T]he silence of a defendant, after arrest, cannot be used against him” unless it is patently inconsistent with a defense asserted.

    The court concluded that the defendant’s silence was a proper subject of cross-examination because of the inherent inconsistency with his defense. The court weighed the probative value of the silence against the potential prejudice to the defendant, finding that the probative value outweighed the prejudice in this particular fact pattern.

  • People v. Kress, 29 N.Y.2d 429 (1972): Silence After Arrest Cannot Be Used Against Defendant

    People v. Kress, 29 N.Y.2d 429 (1972)

    A defendant’s silence after arrest and after receiving Miranda warnings cannot be used against them at trial as evidence of guilt, nor can the prosecutor comment on their failure to provide an alibi to the police.

    Summary

    Defendants Kress and Christman were convicted of attempted rape, sodomy, and assault. At trial, neither defendant testified, but both presented alibi defenses. The prosecutor, during summation, highlighted the fact that the defendants didn’t tell the police about their alibis upon arrest. The trial court deemed this “fair comment.” The New York Court of Appeals reversed the convictions, holding that the prosecutor’s comments violated the defendants’ right to remain silent. The court also addressed other evidentiary issues that arose during the trial, including the improper admission of a photographic identification and a co-defendant’s statement.

    Facts

    Kress and Christman were arrested and charged with attempted rape, sodomy, and assault. Kress refused to make any statement to the police except to identify himself. Christman denied the acts but admitted he and Kress were together at the time of the crime. Both defendants presented alibi defenses at trial, but neither testified. The complaining witness identified Kress through a photograph at the police station. A blanket found in Christman’s car was received in evidence but was not connected to the crime.

    Procedural History

    The defendants were convicted at trial. They appealed, arguing that the prosecutor’s comments on their silence after arrest, the admission of the photographic identification, and the co-defendant’s statement were prejudicial errors. The New York Court of Appeals reversed the judgments and ordered a new trial.

    Issue(s)

    1. Whether the prosecutor’s comments on the defendants’ failure to provide their alibi to the police after arrest violated their right to remain silent and constituted reversible error.
    2. Whether the admission of the complaining witness’s photographic identification of Kress at the police station was improper.
    3. Whether the admission of Christman’s statement to the police, implicating Kress, was improper against Kress.

    Holding

    1. Yes, because defendants are under no obligation to offer an alibi to police after arrest, and it is impermissible for the prosecution to comment on their silence.
    2. Yes, because admitting testimony of a photographic identification is improper.
    3. Yes, because the statement made by a co-defendant to police is inadmissible against another defendant.

    Court’s Reasoning

    The Court of Appeals held that the prosecutor’s comments on the defendants’ silence after arrest were a substantial error. The Court reasoned that defendants are under no obligation to say anything or provide an alibi to the police after arrest, citing People v. Travato, 309 N.Y. 382 and Griffin v. California, 380 U.S. 609. The Court stated that it could have been counted against the defendants that there was no police testimony that appellants told them about alibi witnesses; or, alternatively, that they failed to explain on the trial where they were at the time. The court found this to be prejudicial. Additionally, the court found the photographic identification of Kress by the complaining witness at the police station was improperly admitted, citing People v. Cioffi, 1 N.Y.2d 70, as was Christman’s statement to police that he and Kress were together around the time of the crime. While the seizure and inspection of Christman’s car were deemed improper, the evidence found was not prejudicial. Finally, the Court addressed the imposition of consecutive sentences, holding that separate consecutive sentences for attempted rape and assault with intent to commit rape were impermissible under the circumstances, referencing former Penal Law § 1938.