With respect to cross-examination of a defendant on factual inconsistencies between his testimony at trial and his pretrial statement, the Court has held that “it is not an infringement of a defendant’s right to remain silent for the State to point out differences in the defendant’s testimony at trial and his or her statements that were freely given.”
When a defendant invokes his or her right to remain silent, the interrogation must cease, at least until sometime has lapsed and the defendant is reread his Miranda rights. That being said, even if a defendant is successful in invoking his or her right to remain silent about a particular subject, this right is waived if the defendant discusses, of his or her own volition, that very topic just moments later.
In the present case, defendant waived his right to remain silent. Defendant was cognizant of his Miranda rights and clearly and unambiguously invoked his right to counsel when police originally administered Miranda warnings. However, after first invoking his right to counsel, it was defendant who asked to speak with officers so that he could “tell them the truth.” After acknowledging that he had fought with his brother, defendant avoided questions by saying “ah, let’s not talk about that part,” “we’ll forget about that part,” “it doesn’t matter,” and “I don’t remember.” Considered in context, defendant’s refusal to answer certain questions was not an attempt to end the dialogue, but rather was “part of an ongoing stream of speech,” which included information about the altercation and defendant’s family disputes. Most importantly, defendant voluntarily provided details about the altercation that led to John’s death—the very subject about which he previously said, “let’s not talk about that part.” In other words, defendant told investigators about his recollection of the altercation with John—he thus spoke on that subject.
This case highlights the need for even smart people to always invoke their right to remain silent. Anything important that the police should know should be communicated through an attorney because an attorney’s communications are not admissible at trial.
Because defendant waived his right to remain silent, cross-examination regarding facts to which he testified at trial, but omitted in his statement to police, was proper. During interrogation, defendant claimed his injuries were caused by John biting him. Defendant’s story changed during his testimony when he claimed John stabbed him with a screwdriver and he was forced to defend himself. Therefore, the State’s cross-examination sought to highlight the inconsistency between defendant’s statement to police during interrogation and his testimony on direct examination. This inconsistency is a permissible area for cross-examination. Because defendant did not invoke his right to remain silent, any error in the trial court’s instruction to the jury, to which defendant did not object, was harmless.