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Supreme Court Permits Prosecution To Comment on Defendant’s Silence

A divided Supreme Court held that prosecutors may argued that a defendant’s un-Mirandized reaction to an officer’s question can suggest guilt.

The case is SALINAS v. TEXAS, No. 12–246 (Decided June 17, 2013).

The case began in 1992 when two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene.

The defendant had been a guest at a party the victims hosted the night before. He agreed to hand over his shotgun to the police for ballistics testing and to accompany police to the station for questioning.

The defendant was not read Miranda warnings. See Miranda v. Arizona, 384 U. S. 436 (1966).  The defendant answered the officer’s questions until he was asked whether his shotgun “would match the shells recovered at the scene of the murder.” At that time, he “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” At his trial, prosecutors used his reaction to the officer’s question as evidence of his guilt.

Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, found that no the prosecutor’s action was legitimate because the defendant never asserted his right to remain silent. Justice Alito suggested that it was “undisputed that [the defendant’s interview with police was voluntary.”

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Law Review Article on Encryption and Fifth Amendment Listed in Top Ten for Law Enforcement.

A Law Review Article for the Whittier Law Review I wrote, RETHINKING THE APPLICATION OF THE FIFTH AMENDMENT TO PASSWORDS AND ENCRYPTION IN THE AGE OF CLOUD COMPUTING was recently listed on Social Science Research Network Top Ten download list for Law Enforcement.

The article should be appearing in print soon.



Juvenile Rape Conviction Reversed for Miranda Violation

An Ohio court of appeals has reversed the conviction of a juvenile convicted of rape.  The court found that the juvenile’s statements were obtained in violation of his Miranda rights.

The case is In re J.S., 2012-Ohio-3534.­

The juvenile, a thirteen year old boy, was found to have committed rape by the Clermont County Juvenile Court.

At the trial, a witness testified that the juvenile and the female juvenile victim were in an upstairs bedroom at the witness’ apartment.  When the witness heard a door close upstairs, “which was against house rules,” she went upstairs to check on the children.  The witness observed the victim “standing with her panties and pantyhose pulled down to her boots.  [The juvenile] was next to [the victim] with his hands and mouth around [her] vaginal area.”  The victim said that the juvenile had “touched her boo-boo” while pointing toward her vaginal area.

The juvenile argued that a statements he made to the police should have been suppressed because he was never advised of his Miranda rights.  In addition, he argued that the statements were not voluntary.

Miranda only applies when a person is in custody.  The Juvenile Court found that he was not in custody at the time he made his statements.  The court of appeals disagreed, finding that he was in custody for the purposes of Miranda.   The court said:

First, there is no evidence in the record that appellant voluntarily went to the police station.  Rather, his father was instructed by police officers to follow them to the Union Township Police Department so that [the juvenile] could be questioned.  Second, [the juvenile] was only 13 at the time of the interview and, consequently, there was a likelihood that appellant was unaware of his rights, including the right to be silent or request a lawyer.  Third, although [the officer] testified at the adjudication hearing that he informed [the juvenile] he was not under arrest, the videotape of the interview reveals that no such statement was made.  Rather, [the officer] stated only that [the juvenile] would be returning home after the interview, implying at times that the interview would end once [the juvenile] finally told the truth.  Further, [the officer] never told appellant that he had the right to end the interview at any time. 

The case was remanded to the Juvenile Court for a new trial.  Also:  read coverage in the Cincinnati media.


Prosecutor’s Comments on Defendant’s Right to Not Testify Not Grounds for Mistrial

In a prosecution for possession of Khat, an Ohio Appeals Court has held that a mistrial was not necessary when a prosecutor inadvertantly commented on the defendant’s refusal to testify.

The case is State v. Mohamed, 2012-Ohio-3636.

The Defendant was convicted by a jury of possession of drugs: cathinone, a Schedule I controlled substance.  Otherwise known as Khat.

A sheriff’s deputy stopped the van the defendant was driving after observing two traffic violations.  The Deputy observed a “pile of green vegetable matter he believed, based on his training and experience, to be khat.”  The deputy described khat “as a plant commonly grown in Africa and which contains an illegal stimulant called cathinone. . . [K]hat is shipped into the United States and disbursed through illegal warehouses to Ohio, including Columbus; Minnesota; New York; and other areas with Somali cultures.  He testified it is commonly used by certain ethnic groups.  The deputy testified that the stimulant is ingested by chewing, brewing, or smoking the khat.”

The defendant admitted that he knew what khat was, but denied that he possessed khat.  The deputy testified that the defendant “he asserted it was ‘garabo.’” Because it consisted of dried leaves.  Further testimony established that the defendant and his passenger were driving from Columbus to New York and that he was chewing the leaves found in the van.  The court said the

reasonable inference was that he was using the stimulant to enable him to stay awake and alert while driving.  Moreover, he was driving to meet a long-time acquaintance whom he knew only as “Number” at a location to be determined only upon his arrival in New York.  . . . [The defendant] offered no justification for his possession of the dried leaves which contained cathinone; rather, he merely denied that they were “khat.”

In closing arguments, the prosecutor stated, “He can’t tell you where he got it. Actually, he won’t tell you where he got it.  It’s not that he can’t, it’s he won’t tell you where he got it, what the name of the person is.”   Defense counsel objected that this was a comment on the defendant’s right to refuse to testify.  The trial judge immediately gave a curative instruction, reminding the jury that the defendant had a right not to testify and that the fact that he did not testify could not be considered for any purpose.  In addition, the prosecutor, following the trial judge’s curative instruction, stated, “Ladies and Gentlemen, I didn’t mean he wouldn’t tell you.  It is absolutely his right not to testify.  We all know that.  That wasn’t what my comment was meant to be.”

The court held that a mistrial was not necessary, concluding that “the prosecutor inadvertently got off track during his closing argument and misspoke.”  As a result, the court concluded that the defendant “did not suffer unfair prejudice which gave rise to a manifest or high degree of necessity for ordering a mistrial.”