Can the Assistant Prosecuter Ask the Jury to Consider the Defendant's Pre-Arrest Silence for Any Purpose When He Did Not Testify at All ?
In State of New Jersey v. Marshall, 260 N.J. Super. 591, 617 A.2d 302 (N.J. Super. 1992), the defendant was convicted of second-degree conspiracy to rob following a jury trial.
During the assistant prosecutor's summation, he argued to the jury that the defendant, who did not testify at trial, demonstrated his guilt by failing to report the robbery to the defendant's employer.
The New Jersey Superior Court found that "realistically, the assistant prosecutor was arguing that if he were innocent, [the] defendant ultimately would have reported the robbery to the police who were investigating the crime." Marshall, supra at 595.
The court concluded that:
A jury may consider a defendant's pre-arrest silence only to affect his credibility and even then only when the trial judge first rules that defendant's silence may reasonably be viewed as inconsistent with his testimony. Here, defendant did not testify so the assistant prosecutor should not have asked the jury to consider his pre-arrest silence for any purpose. Id. at 598