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Criminal Law

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CASES

By Jeffrey Ivashuk

Criminal law -- Argument -- Silence of defendant -- Prosecutor's comments regarding defendant's failure to make an exculpatory statement after police stopped her and found cocaine in her bag, even if made prior to her actual arrest, amount to unconstitutional comments upon defendant's protected post-arrest silence -- Invited error -- While defendant's testimony on direct examination that she was silent when police discovered the cocaine and that the reason for her silence was that she was too shocked to speak invited a limited degree of inquiry responsive to her statement that she was too shocked to speak, prosecutor's comments exceeded scope of invited response when he suggested that instead of being too shocked to speak, she should have been shocked enough to affirmatively proclaim her innocence -- Harmless error -- Comments on defendant's silence were not harmless where there exists reasonable possibility that improper prosecutorial comments on defendant's silence influenced jury verdict -- Inference of guilty knowledge arising from defendant's exclusive possession of cocaine was rebutted by evidence that she successfully passed through customs and drugs were not discovered and by evidence that she was traveling with an acquaintance who might have put the cocaine in her bag as she postulated -- Remand for new trial     33 Fla...continue to full post

Full post as published by JAABlog on May 14, 2008 (boomark / email).