Silvernail v. State
In Silvernail v. State, 777 P.2d 1169 (Alaska App. 1989) the Court noted that evidence of pre-arrest silence also may be inadmissible, as both the innocent and the guilty may be intimidated by the "emotional and confusing circumstances" of the "hostile and perhaps unfamiliar atmosphere" of police interrogation.
The Court reversed Silvernail's conviction because we concluded it was plain error for the trial judge not to rule that the probative value of Silvernail's silence was outweighed by its prejudicial impact.
In Silvernail, the defendant testified that he participated in a kidnapping and murder under duress. On cross-examination, the prosecutor asked Silvernail why he did not claim duress when the police first contacted him. Silvernail's attorney objected on Fifth Amendment grounds, but the trial judge allowed the testimony.
On appeal, Silvernail argued that the evidence should have been excluded under Alaska Rule of Evidence 403.
In reversing Silvernail's conviction, the Court noted the close relationship between the constitutional prohibition against evidence of an accused's silence in the face of official questioning and the low probative value of such evidence.
Citing Alaska caselaw expressing distrust of silence as probative evidence of guilt, the Court ruled that the trial court's failure to weigh the probative value of the evidence against its potential for prejudicial harm was plain error.