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Criminal – Impeachment – Prior Silence

Where a detective testified that the defendant declined to be interviewed after his arrest, and where the record fails to show the defendant’s silence was in response to any Miranda warnings, the evidence is admissible to suggest that the defendant’s self-defense explanation was of recent fabrication, the Court of Appeals holds.

The defendant shot a handgun several times into a vehicle killing one man and grazing another. At trial, the defendant testified he fired the shots in self-defense because one of the two victims pointed a sawed-off shotgun at him.

The prosecutor called a detective to the stand as a rebuttal witness to impeach the self-defense claim as a recent fabrication.

The prosecutor asked the detective if he interviewed the defendant. “I had a chance to interview Mr. Caprino,” the detective answered, “and he declined to speak with me.” After the trial court overruled the defendant’s Fifth Amendment objection, the defendant elected not to cross examine the detective. No evidence regarding Miranda warnings was presented.

The defendant relies on Doyle v. Ohio, 426 U.S. 610 (1976), which held the use for impeachment purposes of a defendant’s silence “at the time of arrest and after receiving Miranda warnings” violates the Due Process Clause of the Fourteenth Amendment.

After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right. On the other hand, the Constitution does not prohibit the use for impeachment purposes of a defendant’s silence prior to arrest, or after arrest if no Miranda warnings are given. In short, Doyle applies only when the defendant maintains his silence after receipt of governmental assurances.

The absence of any evidence demonstrating that the defendant’s silence was in response to any Miranda warnings he received precludes the application of the Doyle due process doctrine.

The defendant’s convictions for second-degree murder, attempted malicious wounding, and felonious use of a firearm are affirmed.

Caprino v. Commonwealth (Kelsey, J.) No. 2272-07-4, Dec. 23, 2008; Fairfax County Cir. Ct. (Stitt) Joseph A. Sadighian for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 008-7-535. 6 pp.

VLW 008-7-535

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