When May the State Use Evidence of a Defendant’s Silence Before Trial?

A couple of weeks ago, I wrote about the prohibition against the State commenting on a defendant’s failure to testify, or, in other words, a defendant’s silence at trial. Such comments are disallowed as they abridge a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence. This post addresses a related issue:  When and how may the State in a criminal trial use evidence of a defendant’s silence before trial to establish a defendant’s guilt or impeach a defendant’s credibility? (This is not the first time we have written about this topic on the blog. Jessie Smith did so here in 2012; nevertheless, a few relevant cases have been decided since then, and I thought it would be helpful to revisit the issue.) Defendant’s invocation of right to silence may not be used as substantive evidence of guilt. When a suspect or defendant invokes the privilege against self-incrimination by remaining silent, that silence is protected from prosecutorial comment or substantive use as evidence of guilt -- regardless of whether the right is invoked before or after the defendant’s arrest. So held the North Carolina Court of Appeals in State v. Boston, 191 N.C. App. 637 (2008), extending the rule that the North Carolina Supreme Court adopted in State v. Ward, 254 N.C. 231 (2001), barring substantive use of post-arrest silence, to a defendant’s invocation of the right to remain silent even before arrest. See State v. Ward, 254 N.C. 231 (2001) (holding that under the federal [...]