Is Cross-Examination About Defendant's Post-Arrest Silence Allowed ?
In Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the Supreme Court concluded the State could not cross-examine a testifying defendant about his post-arrest silence. See Doyle, 426 U.S. at 611.
In Franklin v. State, 606 S.W.2d 818 (Tex. Crim. App. 1979), our court of criminal appeals reached a similar conclusion, holding that the State could not cross-examine a testifying defendant about his failure to previously raise a self-defense claim during testimony at a pretrial hearing. See Franklin, 606 S.W.2d at 849-50. In both cases, the courts prohibited the State from questioning the defendant about a previous invocation of the right to remain silent -- a right the defendant had justifiably relied on at the time he made the decision to remain silent -- because to do so would not only be "fundamentally unfair," but would effectively render meaningless the protections previously afforded the defendant under the Fifth Amendment. See Doyle, 426 U.S. at 618; Franklin, 606 S.W.2d at 849.