The nation’s highest court recently declined to review a state court’s ruling in Cannella v. Florida, a DUI manslaughter case that raises the unsettled question of whether a criminal prosecutor can use a defendant’s silence prior to his arrest against him.

“There is a nationwide split over whether a criminal defendant’s pre-arrest silence can be used as substantive evidence by the prosecution at trial during the prosecution’s case in chief,” Patrick Canella’s attorney stated in a petition for writ of certiorari, asking the U.S. Supreme Court to review a decision by Florida’s First District Court of Appeal, which affirmed Canella’s DUI manslaughter conviction and 12-year prison sentence.

The Fifth Amendment, which provides that a person shall not “be compelled in any criminal case to be a witness against himself,” has been interpreted to grant a criminal defendant not only the right not to testify in a case against him, but also to remain silent while in police custody. Police officers are required to inform a person of this right – through what police and lawyers call a “Miranda warning” – prior to interrogation. Any information gained prior to the Miranda warning or after a person has indicated that he wishes to exercise his right to remain silent cannot later be used to prosecute the person.

The Supreme Court has previously ruled that a prosecutor can use a criminal defendant’s pre- and post-arrest silence for the limited purpose of impeaching the defendant’s credibility, however. The Canella case raises the interesting scenario where a person who waives his Miranda right and answers some questions, declines to answer others or doesn’t answer them fully.

Canella was arrested and charged with DUI manslaughter as the result of a car accident in which both people in a car that collided with Canella’s truck were killed. Although police asked Canella some questions and took a blood sample, they did not arrest him on the night of the accident. Detective Stephen Barrow questioned him again 48 hours later, at which time Canella agreed to waive his right to remain silent. After answering several questions, Barrow asked Canella whether there was any other significant details about the accident of which police should be aware. Canella responded: “It was pretty dark around there, so I don’t know.”

Barrow did not ask Canella if he had been drinking alcohol prior to the accident. Canella’s blood sample later came back showing that he had a blood alcohol level that was more than twice the legal limit shortly after the accident.

At trial, the state prosecutor asked Barrow whether Canella told him at any time that he was under the influence of alcohol at the time of the accident. Barrow responded negatively. The trial judge overruled an objection by Canella’s attorney, who argued that that the testimony amounted to a comment on the defendant’s right to remain silent.” The judge also declined Canella’s motion for a mistrial, a decision that the First District upheld.

Complicated issues such as this regularly arise in Florida criminal cases. The South Florida criminal defense attorneys at Anidjar & Levine are represent clients in a variety of cases, including those involving assault and battery, burglary, DUI and drug possession and trafficking. We are prepared to aggressively defend your rights and help achieve the best outcome possible.