PROSECUTOR'S MAY NOT COMMENT ON DEFENDANT'S SILENCE
The United States Supreme Court in Doyle found a due process violation if the prosecutor commented on the defendant's silence. The question here is whether the prosecutor could argue omissions in defendant's post-arrest statement before invoking her Miranda rights. The 9th Circuit Court of Appea; (Wilken, D.J., joined by Graber and Berzon) held that the prosecutor could not.
The defendant was arrested coming cross the border with cocaine in the gas tank. She at first waived her Miranda rights and made a statement that she had lent her car, and had just gotten it back, and was going to drive it to L.A. After seven minutes or so, she then invoked her Miranda rights. At trial, the agent who took the post-arrest statement acknowledged changes in his notes and cross-outs. The defendant testified and was crossed on inconsistencies. There were also corroborating witnesses to her version.
In closing, the prosecutor hammered on omissions in her post-arrest statement, and the inconsistencies with her trial testimony, implicitly commenting on her invocation of silence. This was a due process violation. It was not harmless given the focus on her credibility.
U.S. v. Caruto, No. 07-50041 (5-12-08).
