Pre-arrest Silence as Evidence of Guilt Example Case in New York

In People v. De George, 73 N.Y.2d 614, 541 N.E.2d 11, 543 N.Y.S.2d 11 (1989), the defendant and others were in a bar where a shooting had just occurred. The first officers to arrive asked general inquiries of the people present, however, no one, included the defendant responded. At trial, "the People, in an attempt to impeach defendant's claim that the shooting was an accident, and to help prove an essential element of the crime charged, . . . introduced testimony that he remained silent and sat at the bar with a drink in front of him shortly after the incident . . . and did not respond to his general inquiry . . . or Who had the gun?', Who shot him?' " (De George, supra at 617.) The People also introduced evidence that the defendant did not approach or inform the police about the shooting or telephone the police or request someone to do so after this incident that the defendant alleged was an accident. In holding that this use of the defendant's prearrest silence to impeach him and to use as direct evidence of his guilty violated the State's "common-law rules of evidence," the Court of Appeals held that: "In most cases it is impossible to conclude that a failure to speak is more consistent with guilty than with evidence. . . . To be distinguished are those limited cases in which evidence of silence has been admitted to impeach the credibility of a defendant who takes the stand because the circumstances justify the inference that the evidence is more consistent with guilt that innocence." (De George, supra, at 619.) The Court of Appeals further explained that, in this case, there are doubts as to the probative value of the defendant's pre-arrest silence because the police questioning "was not directed at any particular person at the scene and no direct statement or implied accusation was made to defendant that would naturally result in protest if untrue, other people at the bar with defendant did not reply to the police officer's general inquiries either, . . . defendant was not under any duty to speak," and there was no evidence establishing that the defendant heard or understood the questions. (De George, supra, at 620.) However, in De George, supra, the Court of Appeals reaffirmed its prior holding in People v. Rothschild, 35 N.Y.2d 355, 320 N.E.2d 639, 361 N.Y.S.2d 901 (1974), as a proper use of prearrest silence.