Pennsylvania District Attorneys Can’t Use Silence Against Defendant

Filed under: Criminal Law, DUI Tags: by Steven F. Fairlie @ November 10, 2011

The Pennsylvania Superior Court has just reversed the case of Commonwealth v. Molina on the grounds that a District Attorney may not mention a defendant’s silence to the jury. In this case, the prosecutor argued to the jury that the defendant gave contradictory statements, but then refused to cooperate when he was asked to come in to the police station to explain the contradiction. His Pennsylvania Criminal Defense Attorney promptly objected, but was overruled and the Judge permitted the questioning and refused to give the jury a cautionary instruction. The Superior Court held that it was error to permit reference to the defendant’s constitutionally guaranteed right to remain silent, whether pre or post arrest, and whether he had been Mirandized or not, and noted only that in this case he had not testified – thus leaving the door open to a different decision in a case where the defendant’s credibility is at issue or where a defendant attacks the credibility of the police.

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