¶1concurring:
¶2(Filed July 20, 2000)
¶3This per curiam opinion includes a footnote (note 2) that I think could be “dangerous in the wrong hands.”
¶4Let me illustrate my concern with two hypotheticals.
¶5In both eases, A and B, the police find a person (the defendant) standing over a corpse with a smoking pistol.
¶6In case A, the police arrest the defendant right after they get to the crime scene, but they take their time (a half an hour) at the scene before they put the defendant in a police car and transport him to jail.
¶7In case B, the police are slower to decide to arrest the defendant, and only do so after a half an hour — and then they take him immediately to jail.
¶8In both cases, the person repeatedly refuses to answer police questions at the crime scene about what happened and how the victim was shot. And later, in both eases, at his murder trial, the defendant “explains” for the first time that he was attacked by the person whom he shot.
¶9The question is — in both case A and in case B — can the prosecutor make this argument to the jury: “Why didn’t the defendant tell this T was attacked’ story to the police at the crime scene? His silence at the crime scene shows that he is making this story up. Any innocent person would have explained what happened!”
¶10Clearly, such an argument is impermissible jn case A — because such an argument would j-,e commenting on “post-arrest” silence. But what about case B, where the person was not “under arrest” when he was silent?
¶11Why should commenting on the person’s silence in the face of police questions be different — and thus “constitutionally permissible” — in case B? People generally have a constitutional right not to explain their actions to the police, whether or not they are “under arrest” — that’s part of what makes America a (perhaps uniquely) “free country.”
¶12When the police read people their Miranda rights, the police are not conferring “the right to remain silent.” The police are informing the person of a right that they already have — in my judgment, both pre- and post-arrest.
¶13In both hypothetical cases, a prosecutorial argument that the person “didn’t say anything to the police” would seemingly penalize the exercise of a constitutional right. So in both cases, such an argument by a prosecutor would seemingly be impermissible — at least in this hypothetical context.
¶14Obviously, in real life this could be a complex issue. A footnote in a per curiam opinion does not settle the law. I think we may need to look at this issue more carefully if it comes before us in a subsequent case.
¶15I otherwise concur in the majority opinion.