Schrum v. Commonwealth
In Schrum v. Commonwealth, 219 Va. 204, 246 S.E.2d 893 (1978), during trial of Schrum before a jury for rape, the prosecutor propounded a series of questions to the investigating detective with respect to "an occasion to talk to the defendant in regard to the matter." Id. at 209, 246 S.E.2d at 897.
In response, the detective testified that Schrum, then charged with the offense, voluntarily reported to police headquarters, accompanied by counsel.
Further inquiry by the Commonwealth into the attendant "interview" prompted the detective to answer, "As I said, he was with his attorney and his attorney advised him not to make any statement at this time."
Defense counsel's immediate objection and motion for a mistrial were overruled by the court, and the prosecutor was permitted to pursue the incident, concluding with the detective's acknowledgment that Schrum was advised of "his rights," "executed a rights waiver" but provided "no statements." Thereafter, the trial judge continued the inquiry, remarking to the witness, "the man has a right to follow his attorney's advice, or not answer, or the attorney to tell you that he didn't want his client to make a statement," adding, "That's not unusual, is it?," prompting the response, "No sir, that's not unusual." Id.
In reversing the conviction, the Court reaffirmed the view that "the Fifth Amendment precludes the prosecution from using an assertion of the privilege against self-incrimination to discredit or convict the person who asserted it." Id. at 211, 246 S.E.2d at 898 .
The Court concluded that the Commonwealth's use against Schrum of his post-Miranda exercise of the rights to silence and counsel offended due process. See id. at 213, 246 S.E.2d at 899.