Cross-Examination of Statements Made Before Arrest
The courts distinguish cross-examination of a defendant regarding statements made after his arrest with statements made before his arrest.
"Questions about the defendant's silence before he was arrested are not prohibited, though a defendant may not be impeached by inquiries into his refusal to answer questions after he has been arrested." State v. Graham, 186 N.C. App. 182, 194, 650 S.E.2d 639, 648 (Oct. 2, 2007) (No. COA06-837).
A defendant who chooses to testify in his own defense does not waive his right to be immune from questioning about his silence to police, where that silence was invoked after his arrest. State v. Lane, 301 N.C. 382, 384, 271 S.E.2d 273, 275 (1980) (citing Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)) (It is "fundamentally unfair to impeach defendants concerning their post-arrest silence after they had been impliedly assured through the Miranda warnings that their silence would not result in any penalty.").
In State v. Shores, 155 N.C. App. 342, 351, 573 S.E.2d 237, 242 (2002), the Court held the State impermissibly questioned defendant about his post-arrest silence to police regarding defendant's self-defense argument.
The State's cross-examination and jury argument referencing defendant's silence to the police violated defendant's Fifth Amendment right and warranted a new trial.
See also State v. Hoyle, 325 N.C. 232, 237, 382 S.E.2d 752, 754 (1989) (concluding prejudicial error for the State to cross-examine defendant on his silence to police after his arrest);
State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (concluding prejudicial error for the State to assert in closing arguments that defendant kept silent because he did not want to incriminate himself);
State v. Durham, 175 N.C. App. 202, 204-06, 623 S.E.2d 63, 65-66 (2005) (concluding prejudicial error for State to reference defendant's post-arrest silence in closing arguments).