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A defendant's silence used as evidence

When arrested, it is imperative to remain silent. Most people are familiar with the part of the Miranda warning that notes, "Anything you say may be used against you in a court of law." For those accused of a crime, a recent decision highlights the fact that it really pays to be particular about who you speak to after being arrested.

In a recent decision, the New York Court of Appeals, the state's highest court, held that it was proper for the trial court in a criminal case to allow evidence where a defendant did not say anything about his guilt. The lack of a firm denial led the prosecution to argue that the defendant essentially admitted to the crime. The court called this an "adoptive admission by silence."

The case

The defendant in the case was arrested on suspicion of domestic violence and taken to jail. While in jail, he made a phone call to his ex-girlfriend, the alleged victim in the case. All phone calls from jail are recorded, which is posted next to the telephone.

During the call, the alleged victim accused the defendant of breaking her ribs. The client did not respond with either an affirmation or denial. During the trial, the prosecution introduced the call recording into evidence. During closing arguments, the prosecution argued that because the defendant did not deny the act, it was an admission of guilt.

The takeaway

Prosecutors in New York are aggressive when trying to admit evidence before a jury. Social media posts, phone calls from jail and other non-traditional evidence can be used against a defendant as evidence of guilt.

The case stresses the fact that every defendant must be incredibly cautious when speaking about his or her case. A few tips to take away from this decision include:

  • Do not speak about the event to anyone except for your attorney
  • Do not contact anyone associated with the alleged crime, including the victim, even if it was a misunderstanding
  • Do not post about the case online
  • Remember that while you are incarcerated, all phone calls are recorded and legally admissible in court

One last, important note: This case is not an indication that you should speak to police officers at all, even to deny your guilt. Never speak to a police officer about the incident that led to your arrest without your attorney present.

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