ADMISSION BY SILENCE

ADMISSION BY SILENCE

Recently, a client called concerned that she DID NOT respond to accusations from police when she was accused of shoplifting. While in the parking lot of a store she was confronted by police. The police walked her to her car and noticed many items that in their judgment appeared to be questionable or stolen. When the officer confronted the person about what he believed was contraband she failed to answer and she wondered whether her lack of response would be used against her.  

This post will answer the following questions on the legal concept of admission by silence:

  • What is admission by silence?
  • What are the implications of admission by silence?
  • Why are jurors cautious about accepting a response as an admission by silence?
  • How and when does a juror conclude that a defendant’s response to a given situation constitutes an admission by silence?
  • When exactly is an admission by silence admissible?
  • Does a person’s “right to remain silent” constitute an admission by silence?

What is admission by silence?

Admission by silence is when a defendant offers no response or explanation or replies by saying something suggesting evasiveness or ambiguity regarding what a speaker allegedly tells a defendant or says in the defendant’s presence and hearing.

In other words, admission by silence means the failure by a party, in whose presence, hearing, or observation of an act or declaration is made, to assert that such act or declaration is untrue.

What are the implications of admission by silence?

An admission by silence suggests that the defendant’s silence or evasive and/or ambiguous reply amounts to a silent admission by the defendant that the accusation was true.

It is the responsibility of jurors to decide whether they believe the testimony and whether or not the conclusion reached is a fair one.

Why are jurors cautious about accepting a response as an admission by silence?

Typically, when a direct accusation against a person is made to his or her face, it is usually expected that the accused person will deny or correct the accusation if he or she is truly innocent of it.

However, this is not always the case. Under some circumstances, it might NOT be reasonable to expect a routine denial. In fact, there is a substantial risk a jury could misunderstand and/or misapply an admission by silence.

It is crucial that any conclusions jurors draw are fair ones. Jurors must be certain of ALL of the following before determining a response is an admission by silence (ALL):

  • That the defendant heard any accusation and understood its significance
  • That a person would always speak up in a situation, like the one in question, if he or she were truly innocent—as no one is required to respond to every negative comment that is made about him or her
  • That other factors, apart from guilt or innocence with respect to the particular accusation, that might explain why a person did not choose to respond are NOT present

Remember that some accusations may be of such a nature, or come from such a source, that it would be natural to expect an innocent person to protest when such an accusation is made to his face if there are no other explanations for his silence.

How and when does a juror conclude that a defendant’s response to a given situation constitutes an admission by silence?

If a juror accepts the testimony about the defendant’s alleged silence or reply, then that juror will have to rely on his or her common sense and experience to determine how to interpret the defendant’s silence or answer in this particular case.

If the juror concludes that the defendant did silently admit that the accusation was true, he or she may give that conclusion whatever significance he or she feels is fairly entitled to receive in his or her deliberations.

If the juror is uncertain whether the defendant’s alleged silence or reply amounted to a silent admission, then he or she should disregard it entirely and go on to consider the other evidence of the case in question.

 When exactly is an admission by silence admissible?

 Either party to any given case may show what is formally called an “adoptive admission by silence” by a witness or criminal defendant who, while NOT under arrest (ONE OR MORE):

  • Did NOT respond
  • Responded evasively
  • Responded equivocally

…to a direct accusation that he or she would naturally be expected to deny.

Note that it would NOT be “natural” to reply if doing so might be “self-incriminatory” as to another crime or as to the person’s family members.

It is essential that the jury consider ALL of the following in determining if an admission by silence is applicable (ALL):

  • Whether the witness heard the statement
  • Whether the witness understood the statement
  • Whether the witness had motive or opportunity to reply
  • Whether the witness could properly reply
  • Whether the witness appeared to acquiesce in the statement

Note that in certain, selective circumstances a witness’s failure to tell his or her story to authorities may also be admissible to impeach the witness’s testimony although pre-arrest silence is rarely admitted as evidence of admission by silence.

Does a person’s “right to remain silent” constitute an admission by silence?

 NO, once a person is read their Miranda Rights or is taken into custody by authorities, no adverse inference may be drawn from his or her silence.

Additionally, no inference of guilt may by drawn from (ALL):

  • A person declining to speak without counsel present
  • A person declining to speak after being advised not to by their counsel
  • A person requesting to speak with a counsel first before speaking, even in situation in which the person is not taken into custody

Also note that when a defendant has denied an accusation, both the statement and the denial are considered inadmissible hearsay (i.e. the report of another person’s words by a witness, usually disallowed as evidence in a court of law).

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

 CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

 

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