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Protection Under the Fifth Amendment Right against Self-Incrimination is Applicable to Defendant?s Pre-Arrest Silence

By Walin & Klarich

In the case of People v. Waldie, harmless error was established where the prosecutor was allowed to comment on the defendant?s failure to return numerous calls by police prior to arrest. A jury had convicted defendant Waldie of sex crimes that amounted to two counts of lewd and lascivious conduct against a child under the age of 14 years. On appeal, defendant claimed the court erred by permitting comment on defendant?s pre-arrest silence and his lack of cooperation with the investigation. In Waldie, the lead detective testified that defendant never participated in a police interview, even after repeated phone calls, before he was arrested. The court overruled the defense counsel?s objection to the detective?s testimony on the grounds of hearsay...continue to full post

Full post as published by Southern California Criminal Defense Blog on May 22, 2009 (boomark / email).