What a Defendant’s Silence Means

A King County criminal attorney knows that prosecutors may try to use a defendant’s silence against the accused person. If someone were innocent, would he or she have been expected to say something? If the person remained silent instead, is it admissible evidence of guilt? The answer is not always clear.King County criminal attorney


The usefulness of silence as evidence depends partly on when the defendant remained silent. Was it before arrest, after arrest, before or after Miranda rights were read? Let’s look briefly at three phases of prosecution.

Before Arrest

If a defendant remained silent pre-arrest, the prosecution may introduce the silence as evidence during cross-examination of the defendant. It is not clear whether using the silence during this phase as substantive evidence is self-incriminating. If so, it would violate an individual’s constitutional rights and would not be allowed.

However, if the initial silence is permitted to be part of the evidence, a King County criminal attorney may argue that it is not relevant. Judges respect that the defendant has the right to remain silent and may view it as unfair to bring silence into evidence.

After Arrest, Before Miranda

If the defendant is silent before he or she is read the Miranda rights, the silence may be used against the individual if he or she testify. Here again, the law is not cut and dried. Courts vary on whether silence at this phase of arrest can be presented as substantive evidence in court.

After Miranda Rights

Miranda warns that the defendants’ words can be used against them. The flip side of that is also true: their silence cannot be used against them. But if a defendant is questioned and answers some but not all of the police’s questions, that may be telling, and the prosecution can use the choices as evidence.

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