Tortolito v. State
In Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995), the Court reinvigorated Clenin's Clenin v. State, 573 P.2d 844 (Wyo. 1978) reliance on the Wyoming Constitution's prohibition against self-incrimination rather than on due process analysis in "right to silence" cases, and we extended that protection to pre-arrest silence. Tortolito, 901 P.2d at 389-91.
The Court continued to recognize, however, that a "reference to silence which is not a 'comment' will not be reversed absent a showing of prejudice." Id. at 390.
A "reference" to silence is a "comment" upon the exercise of the right to silence when it is "used to the state's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt." Id. at 391.
In Tortolito, the defendant was identified to the police as having committed a robbery. Following those accusations, officers detained and interrogated Tortolito.
Tortolito "remained silent" in the face of those accusations. In direct examination of the officers, the prosecutor elicited numerous statements about Tortolito's failure to respond to the allegations, and in closing argument, the prosecutor characterized Tortolito's silence as an admission of guilt. Id.
The Court found reversible error in these circumstances:
"Under the erroneous view that no constitutional right to pre-arrest silence exists, a citizen who stands mute in the face of accusatory interrogation about the crime during a law enforcement investigation and inquiry is without constitutional protection against law enforcement personnel who treat silence as probative evidence of guilt. Law enforcement personnel can time the citizen's arrest to occur after the citizen stands mute in the face of the accusation. This practice, which encourages manipulative timing of arrests, does not serve the constitutional provision's purpose of protecting the right to silence during pre-arrest, accusatory interrogation by the state's agents. Permitting prosecutorial use of that silence discourages a law enforcement system's reliance upon extrinsic evidence independently secured through skillful investigation and, instead, encourages reliance upon compulsory self-disclosure. See Escobedo v. Illinois, 378 U.S. 478 (1964)..."
(Tortolito, 901 P.2d at 390.)