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