State’s Remark on Failure to Testify Triggers Reversal

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By Lance J. Rogers

A prosecutor violated a man’s Fifth Amendment right to remain silent when she twice remarked during closing that the man hadn’t testified, even though she never implied that the jury should draw an adverse inference from that silence, a divided Connecticut Supreme Court ruled Dec. 23 ( State v. A. M. , 2016 BL 429804, Conn., No. SC 19497, 12/23/16 ).

The decision shows that prosecutors need to steer clear of any references to a defendant’s tactical decision not to take the stand.

Indirect Remark Sparks Reversal

The court reversed A.M.'s child abuse conviction, saying that it didn’t matter that the prosecutor didn’t expressly or impliedly call on the jury to view the silence with skepticism. Any comment about a defendant’s failure to take the stand heightens the jury’s awareness of the silence and is improper, the court said in an opinion by Justice Dennis G. Eveleigh.

The prosecutor twice told the jury that even though A.M. exercised his constitutional right not to testify, the jury could nonetheless gauge his credibility from statements he made outside of court when he was interviewed by police. She pointed out inconsistencies within A.M’s out-of-court statements and between his statements and some of the testimony given at trial.

The violation here was particularly egregious, the court said, because there is a state statute that expressly bars prosecutors from commenting on a defendant’s failure to testify.

It rejected the state’s argument that the error was harmless, noting that the case hinged on the victim’s credibility and there was no immediate curative instruction.

Justice Peter T. Zarella dissented, arguing that—even if improper—the comments shouldn’t have led to reversal because the prosecutor didn’t invite the jury to misuse the defendant’s silence against him. The prosecutor simply said that the jurors could assess the defendant’s out-of-court statements for inconsistencies even though it didn’t hear him speak directly on the stand. Justice Carmen Elisa Espinosa joined the dissent.

Butler, Norris & Gold, Hartford, Conn., represented A.M. The State’s Attorney’s Office, Hartford, represented the state.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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