Can Police Officer Testify About Post-Arrest Silence ?

Is a police officer testimony about post-arrest silence legal ? In J.D. v. State, 553 So. 2d 1317 (Fla. 3d DCA 1989) two officers arrested the appellant, whom they believed to be the driver of a vehicle which they had been pursuing. See id. at 1318. During the bench trial, an officer testified that after J.D. was arrested and read his Miranda rights, he refused to respond to questions. See id. J.D. objected and moved for a mistrial, asserting that the officer's statement was an impermissible comment on J.D.'s post-arrest silence. See id. The trial court denied the motion for mistrial but did not provide an express ruling on the objection. See id. the trial court adjudicated J.D. delinquent, and J.D. appealed the adjudication to the Third District. See id. The Third District held that the trial court's failure to respond to the objection implicitly overruled the objection and, therefore, the trial judge had considered the offending comment in reaching the judgment. See id.