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The Constitutionally Protected Right Against Self-Incrimination

Posted by Greg DeMichele | Apr 27, 2012 | 0 Comments

Conviction Overturned Because the Prosecutor Violated the Fifth Amendment.

Anyone that's ever watched a police drama on television knows that when a defendant is taken into custody they “… have the right to remain silent and that anything you say can and will be used against you in a court of law…”.  That famous quote is part of what everyone knows as Miranda warnings. The police are required to advise you of your right to remain silent when they take you into custody. The right to remain silent is Constitutionally protected by the Fifth Amendment. A defendant cannot be compelled to testify against himself or herself. The lesser-known corollary to the Fifth Amendment is that a defendant's silence cannot be used as an inference to suggest guilt. In the unpublished decision of State v. Hakim Lester the defendant was being tried for third-degree possession of a controlled dangerous substance (PCP); second-degree possession of PCP with intent to distribute in a quantity less than 10 g;  third-degree possession of PCP with the intent to distribute within 1000 feet of school property; and secondary possession of PCP with intent to distribute within 500 feet of a public housing facility, park or building.  During the state's opening statement the prosecutor told the jury, “… Well, we're not going to have any testimony regarding any drug sale. And I think the last thing — expected I don't really expect either [defendant] to say, yes, you got me, you're right, I did actually intend to sell it.” Clearly the prosecutor was hoping that the defendant would testify to help secure his own conviction or in the alternative the jury would draw an inference that if the defendant did not testify it was because he was guilty.  The defendant did not testify at his trial and the jury convicted him of the first three counts of drug possession. In granting the defendant a new trial the court held, “The prosecutor's comments infringed on the defendant's right not to testify, as well as the presumption of innocence, and, as a result, deprived the defendant of a fair trial.”

About the Author

Greg DeMichele

Gregory P. DeMichele is a seasoned litigator, devoting the majority of his practice to municipal court, personal injury, residential real estate, and family law matters. Greg has helped countless clients navigate challenging cases in municipal, Superior Court, and Appellate Court proceedings.


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