February, 2017

Connecticut:  Defendant’s Fifth Amendment Right to Remain Silent Violated Where Prosecutor Twice Remarked During Closing That Defendant Did Not Testify


            A divided Connecticut Supreme Court found that defendant’s Fifth Amendment Right to remain silent was violated where the prosecutor twice remarked during closing argument that defendant had not testified even though the prosecutor never expressly or impliedly called on the jury to draw an adverse inference from that silence.  The court reversed defendant’s child abuse conviction finding that any comment about a defendant’s failure to take the stand heightens the jury’s awareness of the silence and is improper.  The majority found the violation particularly egregious because there was a state statute that expressly bars prosecutors from commenting on a defendant’s failure to testify.  The error was not harmless where the case was a credibility contest and there was no immediate curative instruction.  The dissent argued that even if the comments were improper they should not have led to reversal where they did not invite the jury to misuse defendant’s silence against him.  State v. A.M., 2016 BL 429804 Conn., No. SC 19497, 12-23-16; full text at http://src.bna.com/k2P.


Ohio:  Juvenile Defendant’s Term of Years Sentence That Exceeded His Life Expectancy Was Unconstitutional


            The Ohio Supreme Court ruled that a juvenile defendant’s term-of-years sentence that exceeded his life expectancy effectively amounted to an unconstitutional life sentence aligning its reasoning with the U.S. Supreme Court’s ruling in Graham v. Florida, 560 U.S. 48 (2010).  State v. Moore, 2016 BL 426708, Ohio, No. 2014-0120, 12-22-16; full text at http://www.bloomberglaw.com/public/document/State_v_Moore_2016Ohio8288_Ohio_Dec_22_2016_Court_Opinion.



Ohio: Mandatory Waiver of Juvenile Defendant to Adult System Violates Due Process


            The Ohio Supreme Court held that a state statute that required mandatory transfer of a juvenile to the adult court system in specific circumstances violated defendant’s right to due process.  State v. Aalim, 2016 BL 426734, Ohio, No. 2015-0677, 12-22-16; full text at http://www.bloomberglaw.com/public/document/State_v_Aalim_2016Ohio8278_Ohio_Dec_22_2016_Court_Opinion.


Tenth Circuit: The Phrase “Criminal Case” in the Fifth Amendment Includes Probable Cause Hearing


            The Tenth Circuit held that the right against self-incrimination applies to pre-trial proceedings and is more than a trial right and therefore applied where defendant’s coerced statement was used at a probable cause hearing which resulted in dismissal of the charges.  The circuits are split on this issue with the Third, Fourth and Fifth circuits holding that the Fifth Amendment is only a trial right while the Second, Seventh and Ninth circuits have held that certain pretrial uses of compelled statements violate the Fifth Amendment.  The Tenth Circuit referred to dictionary definitions for the word “case” likely used at the time the U.S. Constitution was written and decided that the founding fathers intended for a broad application of the Fifth Amendment.  The court also noted that between drafts of the Bill of Rights, James Madison eliminated the word “trial” in writing the Fifth Amendment.  When the suggestion to add the word back in arose during arguments in the House of Representatives, congressmen agreed that confining the right to a criminal trial was improper.  Vogt v. City of Hays, Kansas, 2017 BL 1063, 10th Cir. App., No. 15-3266, 01-04-17; full text at http://www.bloomberglaw.com/public/document/Vogt_v_City_of_Hays_No_153266_2017_BL_1063_10th_Cir_Jan_04_2017_C.