In Illinois Post Arrest Silence Even Before Miranda Generally May Not Be Commented On

People v. Boston, 2018 IL App (1st) 140369 (December). Episode 580 (Duration 9:54)

Long complicated murder case, here is some information on commenting on pre-arrest silence.

Rebuttal Closing

These statements were made by the ASA during rebuttal closing argument:

“The defendant doesn’t say to her, I mean, you know, in his lie, but in reality, he never says I need help, and, in fact, the police told you that when Curry comes with McPherson, the defendant says nothing. If you’re killing someone in self-defense, aren’t you shouting it from the toppist [sic], highest mountain you can find. Wait a minute, thank God you’re here...Drop the knife, police, I was attacked, it’s not what it looks like, I have blood on me, it’s not—I’m cut, I was defending myself, I was attacked, he attacked me. He said nothing to the police. He runs in the back, and then Lieutenant Bankhead comes, and he comes out, and he’s got his hands up, does he say then, listen, it’s a mistake, I am not the one, I am a victim, I was attacked, I had to do it, or to granny, call an ambulance, this is a horrible event. Yeah, if you were truly justified, if you were truly not guilty, that’s what you would do, and that’s not what he did, and that’s how you know.”

A Little History On Pre-Arrest Silence

Here's a historical overview of the law in Illinois regarding the prohibition of the use of pre-Miranda silence, including the silence following a defendant’s arrest but before receiving Miranda warnings, as stated in this court’s opinion People v. Quinonez:

“The United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 617-20 (1976), that it was a violation of the due process clause of the fourteenth amendment for the State to impeach a defendant using evidence that defendant was silent following his arrest, after he was advised of his Miranda rights. The Court reasoned that since Miranda warnings carry the implicit assurance that his silence will carry no penalty, it would be fundamentally unfair to allow a defendant’s post-Miranda silence to impeach his trial testimony. Doyle, 426 U.S. at 612. However, the Supreme Court later held that the prohibition applies only to a defendant’s silence after being advised of his Miranda rights. Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam). In doing so, it found that states were free to formulate their own rules with respect to defendant’s silence before arrest, as well as after arrest but before receiving Miranda warnings.”

Quinonez, 2011 IL App (1st) 092333, ¶ 25 (citing Jenkins v. Anderson, 447 U.S. 231, 238 (1980); Fletcher, 455 U.S. at 607).

Issue

What is at issue are the comments made by the prosecutor prior to defendant receiving his Miranda warnings.

Illinois Law

Illinois evidence law prohibits impeachment of a criminal defendant with his or her postarrest silence, regardless of whether the silence occurred before or after the defendant was given Miranda warnings.

As set forth by our supreme court, “an accused is within his rights when he refuses to make a statement at the time of his arrest, and the fact that he exercised such a right has no tendency to prove or disprove the charge against him, thus making evidence of his refusal neither material or relevant to the issue being tried.” Lewerenz, 24 Ill. 2d 295, 299 (1962) (citing People v. Rothe, 358 Ill. 52, 57 (1934)).

The Illinois rule with it's language of relevancy and materiality is based on evidentiary principles, rather than constitutional law.

The Illinois evidentiary rule generally prohibits impeachment of a criminal defendant with his postarrest silence, regardless of whether it occurred before or after he was given Miranda warnings, because under those circumstances, that silence is not considered relevant or material. 

What About Pre-Arrest Silence?

A prosecutor’s comments on prearrest silence, however, are proper. See People v. Manley, 222 Ill. App. 3d 896, 909 (1991); People v. Graves, 142 Ill. App. 3d 885, 890 (1986).

An Arrest

In order to determine whether the prosecutor’s comments were improper, we must first determine at what point defendant was arrested.

“An arrest occurs when a person’s freedom of movement is restrained by physical force or a show of authority.” People v. Surles, 2011 IL App (1st) 100068, ¶ 23.

Factors that may be indicative of an arrest include

“(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person of the citizen; and
(4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”

People v. Luedemann, 222 Ill. 2d 530, 553 (2006).

We determine whether a person is under arrest based on whether an objective reasonable person, innocent of any crime, would conclude that he is not free to leave under the circumstances.

The Arrest In This Case

The record here demonstrates that defendant was not arrested until an officer pointed his weapon at defendant, commanded defendant to ascend the staircase, and guided defendant up the staircase while continuing to point his weapon at defendant.

Although this officer was the only officer on the stairs at that time, defendant was aware of the presence of at least three officers on the scene. In addition, this officer approached defendant with his weapon drawn, gave defendant an order to come with him up the stairs, and continued to point his weapon in defendant’s direction as they ascended the stairs.

Under the totality of these circumstances, we conclude that any interaction defendant had with police officers from that point forward is considered postarrest.

Thus it follows that the prosecutor’s comments regarding the points in time prior to defendant’s arrest were proper.

The Illinois "Exception"

Illinois courts have held that there are two exceptions to the general rule, where postarrest silence will be considered relevant. People v. McMullin, 138 Ill. App. 3d 872, 877 (1985). A defendant’s postarrest silence may be used to impeach his trial testimony when:

(1) the defendant testifies at trial that he made an exculpatory statement to the police at the time of his arrest; or
(2) the defendant makes a postarrest (but still pretrial) statement that is inconsistent with his exculpatory trial testimony.

Quinonez, 2011 IL App (1st) 092333, ¶ 27.

Despite the State’s request, we decline to consider whether defendant’s postarrest silence falls within one of the exceptions to the general rule. First, the facts of this case are nuanced and the State cites no case wherein it was allowed to impeach a defendant with his or her silence where the State itself elicited the testimony it purports to impeach. See Ill. S. Ct. R. 341(i), (h)(7).

Second, even if it did not fall within one of the exceptions, defendant cannot demonstrate plain error. Here, the evidence defendant committed first degree murder was overwhelming.

Holding

We do not believe that any alleged error was “so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.” We conclude defendant has not met his burden to demonstrate the error was so serious it affected the fairness of the trial and challenged the integrity of the judicial process.