A blog of the Philadelphia Bar Association’s Criminal Justice Section

third  circuit

By BURT ROSE

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In United States v. Jace Edwards, Appellant 2015 WL 4069280 (3 rd Cir. July 6, 2015), the Defendant had been convicted in the United States District Court in the Virgin Islands of Possession with Intent to Distribute Cocaine. The case was before Judges McKee, Smith and Scirica. Judge Smith wrote the Opinion for the Panel without a dissent.

On appeal, the Defendant argued that his Fifth Amendment rights were violated by repeated references at trial to his post-arrest, post-Miranda silence. The Court agreed and granted Edwards a new trial. After his arrest, law enforcement officials issued Edwards a Miranda warning and questioned him but Edwards invoked his right to remain silent. At trial, the Government repeatedly sought to use that post-Miranda silence as substantive proof of guilt as well as for impeachment purposes. Edwards testified in denial of his guilt at trial. In that testimony, he denied knowledge of the contents of the suitcase which he had carried out of a hotel room.

In its closing argument, the Government contended that Edwards had remained silent after law enforcement officials had shown him the contents of the suitcase that contained the cocaine. According to the prosecutor, the Defendant’s silence under those circumstances suggested a culpable state of mind.

In this appeal, the Government conceded that this was constitutional error under Doyle v. Ohio, 426 U.S. 610 (1976) but urged that the error was harmless. The Court could not agree because in its closing, the Government asked the jury to draw an inference of guilt that is not permitted by Doyle v. Ohio, supra. Importantly, the District Court’s attempt at a curative instruction was not effective. The District Court instructed the jury that, “To the extent that there is an inclination of any defendant to not say anything, you cannot hold that against the Defendant for not saying something”. Because this instruction came only after the District Court had overruled the Defendant’s contemporaneous objection to the Government’s closing statements, it was not the proper and immediate action that was necessary to avoid a violation under Doyle v. Ohio.

According to Judge Smith, this case highlights “the manifest importance of immediate curative instructions whenever a defendant’s post-Miranda warnings silence is mentioned before the jury.”

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