People v. Jacobs

¶1I concur in the judgment but respectfully depart from the court’s analysis.

¶2The United States Supreme Court in Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240], barred the use against a criminal defendant of his postarrest silence as a violation of due process. This holding was limited in Fletcher v. Weir (1982) 455 U.S. 603 [71 L.Ed.2d 490, 102 S.Ct. 1309], to cases in which an arrestee had been given Miranda warnings. The record in Fletcher, as in the instant case, failed to disclose if Miranda warnings were given prior to defendant’s silence; in the absence of the sort of affirmative assurances embodied in the Miranda warnings, there is no violation of due process of law for a state to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. (455 U.S. at p. 607 [71 L.Ed.2d at p. 494].) However, the court continued at p. 607: “A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant’s own testimony.” The California Evidence Code confers on the trial court the discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of *753misleading the jury. (Evid. Code, § 352.) It is in its exercise of this discretion that I find the trial court erroneously allowed cross-examination as to defendant’s postarrest silence.

¶3As the majority notes, it has been recognized that silence at the time of arrest may be inherently ambiguous. An arrestee may be exercising his right to remain silent to avoid incriminating himself or another; he may be so intimidated by the hostile atmosphere that he chooses to remain mute; or he may be unable to respond to questions based on the confusing and emotional circumstances surrounding the arrest. (United States v. Hale (1975) 422 U.S. 171, 177 [45 L.Ed.2d 99, 105, 95 S.Ct. 2133]; see, also, Doyle v. Ohio, supra,426 U.S. 610, 617-618 [49 L.Ed.2d 91, 97-98]; People v. Fondron (1984) 157 Cal.App.3d 390, 398-399 [—Cal.Rptr. —]; People v. Gaines (1980) 103 Cal.App.3d 89, 94-95 [162 Cal.Rptr. 827], disapproved on other grounds in People v. Nelum (1982) 31 Cal.3d 355 [182 Cal.Rptr. 515, 644 P.2d 201].) The facts in the instant case present the potential for just such an ambiguous interpretation of defendant’s silence. At the time of the arrest defendant was in a neighborhood known for prostitution, he had just engaged in sexual conduct with a woman and was being chased by her boyfriend and several other men. He had witnessed a physical fight between this woman and her boyfriend. The situation was unquestionably volatile, and his place in the drama was not at all clear. When the police officer found him hiding nearby, he admittedly struck him with his flashlight and jumped on his back knocking the air out of him and, according to defendant, hurled racial insults and administered physical blows which required medical treatment.

¶4Under these circumstances, defendant’s silence reasonably could have been based on his fear of the officer or a realization that any attempt at explanation would be futile; it may have been an invocation of his right to remain silent. Yet on the other hand, the jury well might infer from this silence that defendant was tacitly admitting his guilt or that his explanation at trial was recently fabricated. There is a serious risk of prejudice from such inference, and the probative value of the ambiguous silence is slight in comparison. “Not only is evidence of silence at the time of arrest generally not very probative of a defendant’s credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.” (United States v. Hale, supra,422 U.S. 171, 180 [45 L.Ed.2d 99, 107]; fn. omitted.)

¶5*754Defendant asked the trial court to exercise its discretion under section 352, Evidence Code, by objecting to cross-examination concerning his arrest1 and by a later motion for a mistrial. The trial court overruled the objection and denied the motion, concluding that there was nothing sufficiently prejudicial in that evidence. Given the danger of undue prejudice inherent in this kind of evidence and its questionable probative value, it is my conclusion that under the circumstances, the trial court abused its discretion in permitting cross-examination of defendant regarding his silence during and after his arrest.

¶6Respondent’s petition for a hearing by the Supreme Court was denied October 25, 1984. Lucas, J., was of the opinion that the petition should be granted.