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TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER.

The Third Department determined the prosecutor should not have elicited testimony from an investigator about defendant’s exercise of his right to remain silent. The error was deemed harmless however:

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We agree with defendant that Supreme Court erred in permitting the People to elicit testimony about defendant’s invocation of his right to silence and to comment on that testimony in summation. “[I]t is axiomatic that when a defendant invokes his or her constitutional right against self-incrimination, the People may not use his or her silence against him or her on their direct case”… . The principle applies when a defendant unequivocally states his or her desire to halt all questioning, even if he or she has previously responded to other questions … . A State Police investigator testified at trial that he interviewed defendant after his arrest and read him his Miranda rights, which defendant stated that he understood. Defendant then willingly answered a series of questions about various topics. However, when asked if he had punched or pushed the trooper, defendant responded that “he didn’t want to say any more.” During summation, the prosecutor remarked upon this testimony, noting that when defendant was asked about striking the trooper, he had not denied that he had done so or offered an explanation, but instead had stated that he did not want to say anything else. Defendant’s counsel objected twice to these remarks, but was overruled. Contrary to the People’s assertion, defendant’s statement that he did not want to say any more was an “unequivocal and unqualified invocation of [the] right” to remain silent … . People v Johnson, 2017 NY Slip Op 03804, 3rd Dept 5-11-17

CRIMINAL LAW (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/SELF-INCRIMINATION, RIGHT TO AVOID (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)

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