MBE Rules · Criminal Procedure
Comment on Silence
Griffin / Doyle
The rule
Prosecutors may not comment on a defendant's failure to testify or impeach with post-Miranda silence; pre-arrest, pre-Miranda silence may be used unless the defendant expressly invoked the privilege.
In plain English
In criminal cases, prosecutors cannot mention a defendant's choice not to testify or use their silence after being read their Miranda rights against them. However, if the defendant remained silent before being arrested and before receiving Miranda warnings, that silence can be used in court unless the defendant clearly stated they were invoking their right to remain silent.
Worked example
During a robbery trial, the prosecutor pointed out that the defendant did not testify in their defense. The defense objected, citing the rule on silence, and the judge agreed, ruling that the prosecutor could not comment on the defendant's choice not to testify. The outcome was that the jury was instructed to disregard any implications about the defendant's silence during the trial.
Memory hook
Silence is golden, but only if it’s post-Miranda!
The trap
Exams often include scenarios where students must distinguish between pre-arrest and post-arrest silence, leading to confusion about when silence can be used against a defendant.
How examiners test it
Questions typically present a fact pattern involving a defendant's silence and ask whether it can be used by the prosecution, testing the candidate's understanding of the timing and context of that silence.
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