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The Florida Supreme Court Continues it?s Commitment to Protect the Fifth Amendment Right Against Self-Incrimination.
Posted by: euser
February 24, 2010

In the case of Ventura v. State, 35 Fla. L. Weekly S117a, decided February 18, 2010, the Florida Supreme Court issued an important decision that reiterates the importance of the Fifth Amendment right against self-incrimination and confirms a standard of review which ensures that the right is given the maximum protection on appeal.

During the Ventura trial, the detective who made the arrest commented on the defendant's silence. Those comments by the detective were, "Along with the victims, the defendant's [sic] wouldn't give any statements." The detective later testified, "Yes. The suspects were in custody and the defendant then declined to make statements."

The case was initially appealed to the Third District Court of Appeal. The Third District Court recognized that the detective's comments were a violation of the defendant's constitutional right to remain silent by commenting thereon to the jury. The court said that the error was harmless beyond a reasonable doubt because the evidence of guilt was overwhelming. See Ventura v. State, 973 So. 2d 634, 637 (Fla. 3d DCA 2008).

The Supreme Court soundly rejected as improper the District Court of Appeal ruling of no harmless error because the evidence of guilt was overwhelming. The Supreme Court noted that comments on a defendant's silence are high risk errors as recognized by the United States Supreme Court in Chapman v. California, 386 U.S. 18 (1967) and present a substantial likelihood that such comments violate a right to a fair trial by influencing the jury verdict.

The court noted that Florida recognizes that commenting on the silence of an accused is not a viable strategy for obtaining convictions and that any comment either direct or indirect by anyone at trial, is a constitutional error that must be avoided.

The Florida Supreme Court in Ventura, discussed the long line of cases which hold that harmless error analysis must not become a device whereby the appellate court substitutes itself for the jury and by excluding the impermissible evidence, examines the remaining permissible evidence and determines that the evidence of guilt is sufficient or even overwhelming. The court in citing to its earlier decision in DiGuilio v. State, 491 So. 2d 1129, 1139 (Fla. 1986) stated, "Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached. . . ."

The Supreme Court reiterated that the harmless error test places the burden on the state as the beneficiary of the error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or alternatively, that there was no reasonable possibility that the error contributed to the conviction.

The court in this case reiterated that the test for determining whether reversible error occurred is not a sufficiency of the evidence, not a correct result, not that this conduct was clearly wrong, not that there was substantial evidence, clear and convincing evidence or even overwhelming evidence of guilt. All of these are devices by which the appellate court substitutes itself for the trier of fact by simply weighing the evidence. In again citing to DiGuilio at 1136, the court stated, "[T]he focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show that the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful."

The Florida Supreme Court stressed that the standard of review puts the burden on the state to convince the appellate court that the record demonstrates beyond a reasonable doubt that the error did not contribute to the verdict.

This case is an example of a continuing problem in trial courts wherein the prosecution elicits either intentionally or through volunteered statements of police officers, comments that infringe upon the defendant's right not to incriminate himself. The Supreme Court's decision in Ventura, while it cites to past cases, is a strong reminder that this is a continuing problem not only in the trial courts but in the appellate courts as well. District courts of appeal commit error by failing to use what amounts to the most stringent standard of review to protect the Fifth Amendment.

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Fifth Amendment Right Not to Incriminate Oneself Also Applies to Post-Arrest Silence
Posted by: euser
June 19, 2009

The Fifth Amendment to the United States Constitution contains a right basic to our criminal justice system. It provides that no person can be compelled to be a witness against himself.

Many believe that this right is meant to protect only the guilty; this, however, is wrong. The Supreme Court of the United States has on more than one occasion spoken out against this improper assumption. In the case of Ohio v. Reiner, 532 U.S. 17, 21 (2001), the Supreme Court set forth the reasons why the Fifth Amendment is not meant to protect only the guilty.

We have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's basic functions ... is to protect innocent men ... who otherwise might be ensnarled by ambiguous circumstances.

In Cowan, the defendant was arrested with another person suspected of burglary, and both men were placed in the back seat of the police car. As is the common practice of most police departments, the police car had a device to record any conversations.

In this particular case the prosecutor sought to admit excerpts of the recording. In the tape that was played, the person arrested with the defendant was heard to be saying, "Damn, you think they caught us for the home invasion, home burglary?" and also saying "Hey, we did not leave anything in there?" The prosecutor argued that the defendant's lips seemed to be moving and that he appeared to say, "They've got it. They've got it."

Later the defendant testified in his own defense, denying any involvement in the burglary. He testified that he did not say anything while seated in the police car and, on cross-examination as to why his mouth seemed to be moving as in speech, he denied his lips were moving. He also denied ever saying, "They've got it. They've got it." The defendant explained that he remained silent in spite of his companion's declarations, because he was angry at being arrested. The prosecutor then asked the following questions:

Q Did you at any point say to him: "What are you talking about ? What burglary?"

A No, because I was mad and he got me arrested.

Q How come you didn't say: "What burglary are you talking about?" How come you didn't say that?

A I don't know what you're talking about.

The defense counsel had objected to this line of questioning.

In closing argument the prosecutor argued to the jury that it would have been a reasonable reaction for a normal person to deny that statement or least to say that he didn't burglarize anybody, or why are you including me, or what burglary - anything along those lines indicating that the defendant was not part of the burglary.

The court ruled that the tape recordings might have been legally admissible on the issue of refuting the defendant's testimony that he did not say "They've got it" since that was a matter for the jury. The court wrote:

But we do not agree that any attempt at impeachment justifies cross-examination about things he did not say and corresponding argument set forth above. In other words, we draw a distinction between evidence of voluntary inculpatory comments by a defendant under arrest, on the one hand, and defendant's silence - the absence of speech - on the other. The comments would be admissible because declarations by an accused then could be deemed his own voluntary statements. The video record would therefore be admissible to show actual speech by defendant but not for any purpose involving an exercise in silence.

Cowan, 3 So. 3d at 449.

The court went on to state that post-arrest custodial silence of a defendant is simply not admissible as evidence of guilt and is not the proper subject of argument. The court cited to the Supreme Court, to the case of Doyle v. Ohio, 426 U.S. 610 (1976).

The U.S. Supreme Court, in Doyle v. Ohio, noted that, in light of the Miranda warnings that are required to be given to an arrested person, every post-arrest silence is "insolubly ambiguous because of what the state is required to advise the person arrested." Doyle v. Ohio at 618.

This is but one example of many instances in which prosecutors attempt to introduce post-arrest silence as a means of establishing guilt. Defense counsel must always stay alert to ensure that this violation of the basic constitutional right is not allowed to happen.

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