Defendant Silence In California
In People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520-1521, the court explained that the circumstances surrounding defendant's silence must be considered to determine whether defendant's "conduct was an assertion of his rights to silence and counsel."
A defendant's silence is protected only "when the evidence demonstrates that his or her silence . . . results primarily from the conscious exercise of his constitutional rights." (Ibid.)
In Combs, the court observed, "The Supreme Court has given the privilege against self-incrimination a broad scope, explaining that "it can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used."
In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendant's comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply." (Combs v. Coyle, supra, 205 F.3d at p. 283, citing Hoffman v. United States (1951) 341 U.S. 479, 486-487 "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result".)
Under Chapman v. California (1967) 386 U.S. 18, 24, a violation of a criminal defendant's federal constitutional rights requires reversal of the judgment unless the reviewing court determines "beyond a reasonable doubt that the error complained of did not contribute to the verdict."
In People v. Garcia (2009) 171 Cal.App.4th 1649, the court recently considered this issue. the court acknowledged a "split of authority among the circuit courts" but concluded that the better analysis resulted in constitutional protection for assertion of the right to remain silent prior to arrest. (Id. at p. 1664.)
In Garcia, the court recognized that a defendant's assertion of his right to remain silent can be "powerful evidence of consciousness of guilt" and that "evidence of consciousness of guilt is especially important in a circumstantial evidence case." (People v. Garcia, supra, 171 Cal.App.4th at p. 1665.)
The court concluded, however, that the improper admission of such evidence was harmless beyond a reasonable doubt where there was other "overwhelming evidence of defendant's consciousness of guilt." (Ibid.) In addition, an error may be harmless beyond a reasonable doubt where "the evidence of defendant's guilt is overwhelming." (People v. Riggs (2008) 44 Cal.4th 248, 317.)