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25.14 Adoptive Admissions: (Pre-Trial Silence/Doyle)

    25.14.2 Adoptive Admission (Pre-Trial Silence/Doyle): Doyle Error (Comment On Defendant’s Pre-Trial Silence)

    25.14.2.1 Adoptive Admissions (Pre-Trial Silence/Doyle): Doyle Error Predicated On Inference Or Innuendo
    25.14.2.2 Adoptive Admissions (Pretrial Silence/Doyle): Post-Miranda Pretrial Silence -- Evidence Presented Or Prosecutorial Comment Made
    25.14.2.3 Adoptive Admissions (Pretrial Silence/Doyle): Believability Of Witness: Post-Miranda Pretrial Silence-- No Evidence Presented
    25.14.2.4 Adoptive Admissions (Pretrial Silence/ Doyle): Comment On Defendant's Post-Arrest Demeanor Is Doyle Error

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PRACTICE NOTE: Doyle v. Ohio (1976) 426 US 610 [96 SCt 2240; 49 LEd2d 91] error does not require "an express testimonial basis." (People v. Evans (CA 1994) 25 CA4th 358, 370 [31 CR2d 20].) Hence, Doyle error may be predicated upon "inference or innuendo." (Ibid.)

See Manual On Recurring Problems In Criminal Trials [4b. Indirect Reference To Defendant's Failure To Testify: General Principles].

See also generally, NCJIC 305.1.8 [Adoptive Admissions].

See generally, NCJIC 25.14.1.1 [Adoptive Admissions:  Federal Circuit Model Instructions And Notes].

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    25.14.2.2    Adoptive Admissions (Pretrial Silence/Doyle): Post-Miranda Pretrial Silence -- Evidence Presented Or Prosecutorial Comment Made

RATIONALE:  Without a cautionary instruction the jury may draw an adverse inference from any evidence presented or comment made about the defendant's pretrial silence in violation of the defendant's privilege against self incrimination.

POINTS AND AUTHORITIES:  It is well established that the jury may not draw an adverse inference from the defendant's pretrial silence. (Wainright v. Greenfield (1986) 474 US 284 [106 SCt 634; 88 LEd2d 623]; Doyle v. Ohio (1976) 426 US 610 [96 SCt 2240; 49 LEd2d 91]; People v. Ridley (CA 1965) 63 C2d 671, 676 [47 CR 796]; People v. Belmontes (CA 1988) 45 C3d 744, 785-87 [248 CR 126].) Such an inference violates the defendant's 5th and 14th Amendment due process rights (Doyle, supra; see also Griffin v. California (1965) 380 US 609 [85 SCt 1229; 14 LEd2d 106].) Moreover, the exercise of a privilege by a witness is an appropriate matter upon which to instruct the jury. (See NCJIC 25.16.3 [Exercise Of Privilege: No Adverse Inference Or Presumption As To Any Matter At Issue].) Hence, if the jury learns that the defendant exercised his or her constitutional right to remain silent either through permissible evidence or by prosecutorial misconduct, it may be appropriate to instruct the jury as set forth below.

CAVEAT: Normally, the first line of defense as to potential Doyle error should be to keep the jury from learning about it at all. An instruction such as the one above should only be considered if there is a danger the jury will consider the defendant's silence without it.

See Manual On Recurring Problems In Criminal Trials [4b. Indirect Reference To Defendant's Failure To Testify: General Principles].

See also generally, NCJIC 305.1.8 [Adoptive Admissions].

See generally, NCJIC 25.14.1.1 [Adoptive Admissions:  Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION:

    You may not consider for any purpose, including assessing the credibility of the defendant's testimony, evidence that the defendant refused to talk with the police prior to trial. In so refusing, the defendant was exercising [his] [her] constitutional rights and no inference of consciousness of guilt or lack of credibility may be inferred from such exercise.

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    25.14.2.3    Adoptive Admissions (Pretrial Silence/Doyle): Believability Of Witness: Post-Miranda Pretrial Silence -- No Evidence Presented

RATIONALE:  Even if not direct Doyle evidence of prosecutorial comment is before the jurors, they may speculate that the defendant was silent prior to trial and infer guilt from the silence.

POINTS AND AUTHORITIES:  It is well established that the jury may not draw an adverse inference from the defendant's pretrial silence. (Doyle v. Ohio (1976) 426 US 610 [49 LEd2d 91; 96 SCt 2240]; Wainright v. Greenfield (1986) 474 US 284 [106 SCt 634; 88 LEd2d 623]; People v. Belmontes (CA 1988) 45 C3d 744, 785-87 [248 CR 126]; People v. Free (CA 1982) 131 CA3d 155, 161-66 [182 CR 259].) Such an inference violates the defendant's 5th and 14th Amendment due process rights (Doyle, supra; see also Griffin v. California (1965) 380 US 609 [85 SCt 1229; 14 LEd2d 106].) Moreover, the exercise of a privilege by a witness is an appropriate matter upon which to instruct the jury. (See NCJIC 25.16.3 [Exercise Of Privilege: No Adverse Inference Or Presumption As To Any Matter At Issue].)  Moreover, even when there is no express evidence or prosecutorial comment regarding the lack of a pretrial exculpatory statement by the defendant, the jury might still conclude that the defendant failed to make such a statement because none was presented in evidence.

    For example, when the defendant testified at trial the jury may improperly speculate as to why the defendant did not tell the same story to the police before trial. Or, when the defendant didn't testify the jury may improperly infer guilt from the absence of a pretrial statement by the defendant. In such a case it would be appropriate to modify any 5th Amendment cautionary instruction regarding the defendant not testifying. The instruction should be modified to include mention of pretrial silence.

CAVEAT: As with any cautionary or limiting instruction there is a danger of highlighting the prejudicial matter which will have to be considered in deciding whether or not to request this instruction.

SAMPLE INSTRUCTION:

   You must not speculate about whether or not the defendant made any statements about the case prior to trial.

    First, no evidence was presented on this issue and you must not speculate as to any matter upon which no evidence was presented.

    Second, even if the defendant had remained silent prior to trial, it was [his] [her] constitutional right to do so. No inference of any kind may be drawn from the defendant's exercise of [his] [her] constitutional right to remain silent prior to trial.

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