Mimesis Law
9 December 2018

Silence is Golden: Florida Supreme Court Rules That Silence During Questioning is Inadmissible in Trial

May 19, 2016 (Mimesis Law) — In the practice of criminal defense, a victory at the appellate level can translate into something that makes a big difference in the trenches. Those are the little big wins that can help trial attorneys chip away at the State’s “evidence,” that can sometimes tilt the scale in favor of an acquittal. And in a recent opinion, the Florida Supreme Court held that a defendant’s pre-arrest, pre-Miranda silence cannot be used as evidence of guilt if she did not testify during trial. The Palm Beach Post reports:

Jupiter resident Donna Horwitz on Thursday won a new trial for the 2011 murder of her ex-husband when the Florida Supreme Court ruled that a Palm Beach County jury shouldn’t have been told she didn’t talk to investigators when they arrived at the couple’s home in the tony Admiral’s Cove community.

“The state repeatedly emphasized Horwitz’s silence and repeatedly argued that her silence was ‘evidence of consciousness of guilt,’” Justice Barbara Pariente wrote in the court’s unanimous decision. “This use of Horwitz’s silence violated her state constitutional privilege against self-incrimination.”

In a nutshell: Horwitz was questioned by law enforcement immediately after her husband’s death, and she had the temerity to not answer some of the questions posed.  She simply remained silent, nothing more nor less.  A week later, she is charged with first degree murder for the death of her husband, and the next day she effectively invokes her right to remain silent.

At the trial stage, the court allowed the interviewing officers to testify regarding Horwitz’s silence during her questioning, and the prosecutor was allowed to mention it during closing arguments as evidence of Horwitz’s “consciousness of guilt.” The jury convicted and she got a life sentence, also known as the slow death penalty.

Horwitz remained silent before she was Mirandarized, before she was arrested, but as per the United States Supreme Court, she must invoke her right to remain silent in order for that silence to be inadmissible in trial.  It’s simply not enough to STFU.  Because of Salinas v. Texas, and because only a super-duper-guilty and conniving criminal would have the depraved heart to not explain himself away when confronted by law enforcement.  It’s the old, “what have you got to hide?” trope.  All very cloak and dagger.  Besides, it’s not like innocent people confess to crimes they didn’t commit, right?

But the fact is that the Florida Supreme Court undid some of the damage from the Salinas decision, at least for criminal defendants in Florida.  From the Court’s opinion:

We decline to apply the reasoning of the plurality in Salinas to whether a non-testifying defendant’s privilege against self-incrimination under the Florida Constitution is violated by the State’s use of his or her pre-arrest, pre-Miranda silence as substantive evidence of the defendant’s guilt. In Hoggins, we concluded that a defendant’s pre-arrest, pre-Miranda silence is admissible only to impeach the defendant’s inconsistent trial testimony. 718 So. 2d at 770 n.11. Use of the defendant’s silence as substantive evidence of the defendant’s guilt is certainly more harmful than its use to impeach the defendant’s credibility on the stand. (Emphasis added.)

Part of the problem is that many jurors suffer from Perry Mason syndrome.  They come to court expecting some big “aha moment” during cross examination that will relieve them of making any tough decisions during deliberations. And when that doesn’t happen (it never very rarely does), if the state gets to introduce evidence of silence during questioning, it can be very damaging. The defendant can look indifferent, cold blooded, or anything in between.  It’s just what they needed to confirm whatever bias they already had against her.

The notion of someone suffering very dire consequences for simply refusing to answer questions posed by investigators, like Horwitz, has a totalitarian ring to it.  It’s something that we expect to find in a fascistic system of justice.  “Come on,” some may say, in that it’s an exaggeration.  But how much would we be exaggerating?  The right to remain silent has long been one of the main tenets of the privilege against self-incrimination, and catching heat for simply keeping quiet when questioned by cops is something that happens in one of the countries that’s part of the “Axis of Evil” triumvirate.  In Iran, suspects may have the right to remain silent, but an accused’s refusal to respond “will be noted in the minutes” and is admissible in court.

Now, this case was tried in Broward County Circuit Court (or as Miami defense attorneys refer to it, Broweird). This is where the state attorney’s office had to drop over 40 cases after its cops were booted for racist behavior, where a capital murder conviction was recently overturned — and the presiding judge disbarred — because the judge and the prosecutor were texting throughout the trial, and where three trial judges were simultaneously facing DUI charges in 2014.  And one of those judges, who was popped twice for DUI, has been replaced by someone who was fired from the public defender’s office during her first year for ethical lapses.

Quite a place, indeed.

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  • A HREF
    19 May 2016 at 8:33 pm - Reply

    Actually it was tried in Palm Beach county.

    • Mario Machado
      20 May 2016 at 9:13 am - Reply

      You’re right. Thanks for the correction.