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Florida Supreme Court Rules that Pre-Arrest, Pre-Miranda Rights Silence Cannot Be Introduced as Substantive Evidence of Guilt

When you are the criminal defendant under criminal investigation, every action or non-action is considered, included in a report, and as the old adage states, “can be used against you in a court of law.” This is because our society looks to actions, conduct, and behavior to determine the probability that a person is guilty or not-guilty, especially at the time in which a suspect is found at the scene of a crime. Generally we equate actions of crying, faces of fear, and the repeating of “I didn’t do it” and “I’m innocent” as benchmarks of innocence whereas stoic appearances and neutral behaviors are considered a sign of a cold and calculated murderer.

State of Florida v. Horwitz

In a recent case, silence of a criminal defendant was put on the stand by the Florida Supreme Court. According to the court documents, one Florida woman, Donna Horwitz, who was convicted of the murder of her ex-husband, was silent when law enforcement questioned her about her involvement in the death of her ex-husband. This interview occurred before she was arrested and before she was read her Miranda rights, and Horwitz stayed silent throughout the interview up until she was ultimately arrested and charged with first-degree murder. She affirmatively invoked her right to remain silent the next day.

During her initial criminal trial, Horwitz not only did not testify at her own trial, but prosecution admitted her silence (the silence that came during her interview before her arrest and before she was read her Miranda rights) as evidence of guilt. In the prosecution’s theory, only a criminal deviant and someone who was guilty of first-degree murder would remain silent and not attempt to convince officers that she was innocent of the crime.

The Florida Supreme Court’s Holding on Pre-Arrest, Pre-Miranda Silence

The case moved through the court systems and the Florida Supreme Court ruled mid-May that it was prejudicial and a violation of Horwitz’s right against self-incrimination under Florida’s Constitution. In other words, it was highly prejudicial for the prosecution to use Horwitz’s pre-arrest, pre-Miranda silence as substantive evidence of guilt. In addition, to penalize the criminal defendant’s invocation of silence would be to penalize the defendant from invoking her right against self-incrimination at trial. The court continued that silence is ambiguous and any probative value that may be elicited from introducing this silence as evidence would be unfairly prejudicial against the criminal defendant.

One Exception: Pre-Arrest, Pre-Miranda Silence Can Impeach a Defendant’s Statement or Credibility While He/She Is Testifying

The only use that the prosecution could avail itself with the evidence of silence would be to impeach the criminal defendant if he or she attempted to lie or misstate something while testifying, the Florida Supreme Court stated. Because Horwitz did not testify at trial, the prosecution could not enter the pre-arrest, pre-Miranda rights silence as evidence to impeach the credibility and/or statements of the criminal defendant.

The Florida Supreme Court’s Takeaway

The Florida Supreme Court remanded the case for a new trial. The ultimate takeaway for future trials will be that prosecution may not enter into evidence a criminal defendant’s pre-arrest, pre-Miranda silence unless the criminal defendant has decided to take the stand and the evidence of silence would impeach a statement or bring into question the credibility of the criminal defendant while he or she is testifying.

Experienced Criminal Defense Attorney in Fort Lauderdale

If you or a loved one have been arrested for committing a crime, your behavior before and after your arrest and Miranda rights can make all the difference to your case. If your actions or words may be used against you in a court of law, it is important to speak with an experienced defense attorney like Kevin J. Kulik who can advocate on your behalf and guide you through the criminal justice process. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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