Criminal Law Insight:
Please Remain Silent!!
At the time of trial, it is improper for the Prosecutor to make a comment to the Jury on a Defendant’s silence after arrest. The due process clause of the Florida Constitution. Art 1, §9, Fla. Const. provides:
“The standard for determining what constitutes a comment on post-arrest silence is fairly liberal. If the comment is fairly susceptible of being construed by the jury as a comment on the defendant’s exercise of his or her right to remain silent, it violates the defendant’s right to silence.”
The Florida Constitution prohibits the State from admitting into evidence a defendant’s pre-arrest pre-Miranda, silence as evidence of guilt or when the defendant fails to testify. Although the use of defendant’s pre-arrest silence is not precluded in federal court unless the defendant first invoked his right to remain silent, Salinas v. Texas, 570 U.S. 178, 191 (2013), the issue is more nuanced under the Florida Constitution. That is, the privilege against self-incrimination provided in the Florida Constitution offers more protection than the right provided in the 5th Amendment to the United States Constitution. State v. Horwitz, 191 So. 3d 429, 455 (Fla. 2016).
It is important if you have been arrested, to know your rights relating to your pre-arrest and post-arrest right to remain silent.
Our staff and office of experienced attorneys will gladly discuss with you your criminal rights in toto when you consult or hire our firm.