In a plurality opinion, the Pennsylvania Supreme Court decided in Commonwealth v. Molina, 2014 WL 6477607, that the use of pre-arrest silence as substantive evidence of guilt violates a non-testifying defendant’s constitutional rights. This holding is based on the Pennsylvania Constitution, Article 9, the Declaration of Rights, and therefore will not be affected should the United States Supreme Court hold differently if it again considers the constitutionality of pre-arrest silence under the Fifth Amendment.
This decision closes a gap in Pennsylvania that the United States Supreme Court left hanging last year in Salinas v. Texas, 133 S. Ct. 2174, where a controlling plurality of that Court declined to address the primary issue of pre-arrest, pre-Miranda silence but instead side-stepped the issue by holding that, should any such right exist, the defendant in that case failed to properly invoke it. Salinas created the oft-mocked result that, under the federal Constitution, an individual must speak up if they intend to remain silent pre-arrest and pre-Miranda.
In this case, the defendant was found guilty of third-degree murder. At trial, the prosecutor had referenced the defendant’s refusal to speak with Missing Persons detectives during an investigation and indicated to the jury that an inference of guilt should develop from the defendant’s silence. Finding this to be error, the Pennsylvania Superior Court reversed the conviction. The Supreme Court addressed the question as a matter of first impression.
Under Commonwealth v. Turner, 499 Pa. 579 (1982), the Pennsylvania Constitution protects a defendant’s silence during the post-arrest, pre-Miranda period, even precluding the use of a defendant’s silence to impeach his trial testimony. Comparatively, in Commonwealth v. Bolus, 545 Pa. 103 (1996), the Court held that impeachment of a defendant’s testimony with reference to pre-arrest silence does not violate a defendant’s right against self-incrimination. Pre-arrest silence may also be used as a fair response to defense arguments. Bolus and its progeny, however, did not address whether that pre-arrest silence could constitute substantive evidence of guilt.
The Court applied the familiar Edmunds analysis to judge whether the prosecutor’s reference to the defendant’s silence was unconstitutional. Edmunds analysis consists of the Court’s consideration of the text of the relevant constitutional provision, its history, policy considerations, and relevant cases from other jurisdictions addressing a similar question. Textually, the Court found no dispositive differentiation between the Pennsylvania Constitution’s right against self-incrimination and the federal Constitution. However, previous case law development had proven Article 9 to be broader reaching than its federal counterpart. Considering policy reasoning, the Court aimed to avoid the Star-Chamber-type “cruel trilemma of self-accusation, perjury, or contempt” that was basic to the foundational purpose of the right against self-incrimination. Quoting former Justice Mussmano, the plurality emphasized that “if a defendant could not be made a self-accusing witness by coerced answers, he should not be made a witness against himself by unspoken assumed answers.”
In sum, the Court found that the timing of silence is not relevant to the question of whether a prosecutor’s use of silence as substantive evidence of guilt violates an individual’s right against self-incrimination. The Superior Court’s decision was affirmed and the case was remanded for a new trial.
Justices Saylor and Todd, concurring in the judgment, only wrote separately to emphasize their disagreement with the hanging Salinas question of whether there must be an affirmative invocation of the right. Those two justices believe the invocation of the right should be presumed as a matter of course where the pre-arrest defendant is questioned and remains silent.
Justices Eakin and Castille dissented on a combination of procedural grounds and as to the Salinas question of whether any such right to remain silent was properly invoked. They would have avoided the constitutional question all together.
Molina, while only a plurality decision, brings Pennsylvania into line with four federal Courts of Appeals and at least 13 other states. Despite the vigorous dissents, it is arguably the right outcome — silence should not equate to an admission of guilt.