People v. Waldie (4th Dist., 4/24/09, E042303) 09 C.D.O.S. 4980
Error (harmless here under Chapman v. California (1967) 386 U.S. 18, 24) for Riverside County Judge Albert J. Wojcik to allow prosecutor to introduce evidence of prearrest silence and then to argue it.
Police were allowed to testify that defendant never participated in police interview even after he was called a dozen times. Judge instructed jury that it showed consciousness of guilt. In closing argument, prosecutor commented that defendant had not cooperated with police investigation. Evidence and argument violated Fifth Amendment because defendant was deprived of meaningful right to refuse to talk to police.
“If the police are allowed to call a subject persistently and then offer his unwillingness to response as evidence of guilt, a defendant would never be able to claim the protection of the freedom of incrimination … testimony about repeated phone calls and apparent evasiveness … is constitutionally infirm.” But see Jenkins v. California (1980) 447 U.S. 231 (prearrest silence may be used to impeach credibility).
How can this be “harmless error”? It deals with a Constitutional right!