The prosecution has rested in the trial of former New York television executive Muzzammil Hassan, 46, for the beheading of his wife at a television studio. Hassan recently asserted his right to self-representation in the case after having open disagreements with his counsel. We will now see if he actually puts on a case in chief in his own defense. Short of an insanity defense, it is difficult to see a viable defense argument in the case. As discussed below, I am also unsure why some damaging evidence was allowed in the case.
Hassan is accused of beheading his wife, Aasiya Zubair Hassan, at Bridges TV, a television studio that formed ironically to counterbalance the poor images of Muslims in America. At the trial, Hassan emails were read to the jury. In one such email, he wrote “I have not done anything to hurt you since Sunday, since I saw my mistake.” Shortly before the killing, Hassan sent his wife emails pleading to meet with her saying “I am a good man, Aasiya. A humble and decent man, made some mistakes, please don’t punish me so hard. God likes forgiveness.” That was 10 minutes before she died.
What I find curious is that a police lieutenant was allowed to testify about Hassan remaining silent when confronted by police — effectively penalizing his invocation of his Fifth Amendment rights.
Orchard Park Police Lt. Eugene “Joe” Wehrfritz testified he thought that was strange that a husband would not want to speak to the police. Prosecutor Colleen Curtin Gable then followed up with “so after that, you couldn’t ask for his side of the story.” It was testimony that directly invited the jury, in my opinion, to assume guilt because the suspect invoked his constitutional rights. Most defense lawyers would counsel their clients to speak with a lawyer before giving a statement to police. It is not clear if Hassan had opened the door to such questioning or whether the issue had been previously addressed by the court. It is very disturbing to see such testimony before a jury.
The Supreme Court held in Doyle v. Ohio that prosecutors could not use a defendant’s silence against him as a matter of due process — barring such testimony to “impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest.” It has stressed that such references to a defendant’s silence is “fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.” Anderson v. Charles.
Sometimes silence can be used if it was before a suspect was put into custody or before Miranda warnings were given. In Fletcher v. Weir,, the Supreme Court stated
The significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest. The majority of the Court of Appeals recognized the difference, [*606] but sought to extend Doyle to cover Weir’s situation by stating that “[we] think an arrest, by itself, is governmental action which implicitly induces a defendant to remain silent.” 658 F.2d, at 1131. We think that this broadening of Doyle is unsupported by the reasoning of that case and contrary to our post-Doyle decisions.
In Jenkins v. Anderson, 447 U.S. 231, 239 (1980), a case dealing with pre-arrest silence, we said:
“Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev. 1970) . . .
In Jenkins, as in other post-Doyle cases, we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him. In Roberts v. United States, 445 U.S. 552, 561 (1980), we observed that the post-conviction, presentencing silence of the defendant did not resemble “postarrest silence that may be induced by the assurances contained in Miranda warnings.” In Jenkins, we noted that the failure to speak involved in that case occurred before the defendant was taken into custody and was given his Miranda warnings, commenting that no governmental action induced the defendant to remain silent before his arrest. 447 U.S., at 239-240. Finally, in Anderson v. Charles, 447 U.S. 404, 407-408 (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because “Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.”In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant’s own testimony.
This case, in my view, shows the obvious dangers of such testimony. Hassan was likely aware given the status of his marriage and his emails that he would be a suspect — even if he did not commit the murder. Here, the jury is being invited to assume that only a guilty man would decline to speak to the police. An instruction from the court to use the silence evidence only as background or contextual evidence is hardly a solution to the obvious prejudice that the evidence produces against the defense. What is astonishing is that, with an overwhelming case that would be virtually impossible to lose, the prosecutors still opted to introduce the evidence.
This exception would swallow the rule since an officer can simply demand answers before placing a person into custody. Clearly a court can find that a person was already effectively in custody in some cases. However, police can argue that, in the initial encounters with witnesses, they had not resolved on a likely suspect. A defendant would then either have to waive his Miranda rights or face impeachment based on his silence.
Source: Buffalo News
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“What is astonishing is that, with an overwhelming case that would be virtually impossible to lose, the prosecutors still opted to introduce the evidence.”
Yep. But it also shows the attempted erosion of 5th Amendment rights rest squarely upon the prosecution. Prosecution which may have a political motive as many prosecutors view the job simply as a stepping stone into politics and not a means to the end of justice in itself. A weak and unnecessary argument now makes no sense in a case which has such overwhelming evidence unless someone planned to later trumpet such an sloppy and myopic act as being evidence that they are “tough on crime”. The very inclusion of the argument, while not necessarily grounds for disbarment, certainly make a case for investigation of the prosecutions motive if for no other reason to show the argument for what it really is: an erosion of civil rights for no other reason than to erode civil rights.
RE: Tootie, January 28, 2011 at 9:44 am
What the cop suggests (naturally) is a form of torture. Talk and you hang yourself: don’t talk and you hang yourself. And all of that could be true WHILE you are innocent. It’s torture.
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I profoundly agree that being found guilty for merely truthfully asserting, whether by words, pictures, silence or any other actions or inactions, one’s actual innocence, is torture or worse than torture.
Such was done to me when I was seven, in public school, in Eureka, California. And I blame no one.
Actually prof there is a case out of Michigan that did just that, with respect to the right to remain silent….the court held that most ordinary people would have at least denied such a claim….oh yeah…I wonder if the defendant had been a deaf mute….would the result be different…
This guy deserves to be put away for the rest of his life, but the court cannot just ignore solid precedent. Is there an appeal planned here? I agree with Professor Turley that the prosecutors made a big mistake bringing in this kind of testimony when they had the defendant dead to rights.
Would the defense counsel be required to object to keep the silence testimony out? If so, since he was representing himself, maybe he didn’t know to object.
The cop is trying to destroy the fifth amendment.
And anyone who takes his line of thinking is trying to destroy it. There are simply no more dangerous people to the Constitution than law enforcement officers, lawyers, prosecutors, judges, and legislators; and that is why all of us, including law[less] enforcement officers, need this protection to remain silent.
The fifth amendment appears to be an attempt raise the bar beyond what common law already provided, otherwise there would have been no need to mention it in the Constitution since it was already understood that it was lawful viz a viz common law to speak before arrest. It was already in common practice in the colonies. The fifth changed that. It says we don’t have to speak. Period. And it doesn’t put a time-frame on when that occurs.
If there was no Miranda warning (as it was in the beginning) the only way suspects could protect themselves from being witnesses against themselves is to assume from the very beginning when one is confronted by authorities that every comment IS part of any potential case. The cops presume every comment is a testimony, why can the suspect not?
The fifth allows the suspect to consider every word part of a potential legal case, thus falling under the right to retain an attorney to protect yourself.
These protections are made for US not them.
I believe it was in Martha Stewart’s case that comments made by her in the presence of authorities were used against her before there was any indication that she was suspected of wrong doing. Even after that, her very claim to be innocent was used against her as some form of obstruction. Now we are faced with denying our quilt as being a criminal act. All of this we are subject to BEFORE we have our attorney by our side.
This puts the advantage to the government, and not the accused. A just system puts every advantage to the accused, not the government. The cops and prosecutors want the system stacked against the accused, because not solving criminal cases makes many of these officials mentally disturbed individuals. These mental problem is what drives cops and prosecutors to destroy the Constitution.
They need to find other careers instead of destroying it. They need to seek attention for their mental problems as well.
What the cop suggests (naturally) is a form of torture. Talk and you hang yourself: don’t talk and you hang yourself. And all of that could be true WHILE you are innocent. It’s torture.
Our laws are to protect US; not make it easy for the justice system to work. If the cops and prosecutors don’t have enough evidence, they must learn to live with that or drop the case. If this frustrates them they need to find some honest work which doesn’t challenge their patience or ability to live an honest life.
Even at the scene of an auto accident, cops will ask you what you “witnessed”. Or they will ask if you are a “witness” to events and ask for your statements. Clearly, COPS even consider the first benign interface with them as being a testimony subject to future litigation.
If this protection is destroyed by cops, legislators, and judges, the law becomes a weapon to destroy the innocent and the government a rogue criminal enterprise worse than lone gunmen who shoot cops.
The most dangerous group of people in the history of the world is cops, armies, and governments. Not rogue citizens.
Organized law enforcement IS the deadly monster the 5th amendment seeks to protect us from. The cops pretend otherwise only when they would be bigger criminals than civilians could ever be.
If there is enough evidence, the accused doesn’t have to say a word.
I certainly defend, and would personally fight to retain, the Constitutional rights of Mr Muzzammil Hassan to remain silent, if he so chooses, when he is finally executed.
Typically, silence (as well as invocation of right to counsel) comes in as part of the res gestae, the background necessary to explain to the jury the sequence of events leading to arrest. It’s usually accompanied by an instruction that it’s not to be taken as evidence of anything, but merely background for the purpose of aiding the jury to understand what happened and why subsequent actions were taken.
Of course, it’s total nonsense, and invariably taken by the jury as a damning choice by the defendant to refuse to cooperate under circumstances where it would be naturally assumed that a person should, and done for the purpose of insulating a defendant from his guilt.
But it’s another legal fiction indulged by courts, that the jury would never take the invocation of rights as a negative when instructed otherwise by the court. After all, juries must follow the court’s instructions, and are presumed to always do so.