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  • The Pre-Arrest Right to Remain Silent under the Florida Constitution

The Pre-Arrest Right to Remain Silent under the Florida Constitution

If you are under investigation for committing a crime, it is important to seek out the services of a qualified criminal defense attorney before you make a statement or answer any questions. Both the United States Constitution and the Florida Constitution provide important protections against self-incrimination. The Florida Supreme Court recently decided on May 5, 2016, State v. Horwitz, SC15-348 (2016), the defendant, Donna Horwitz, was convicted of first-degree murder with a firearm.

During the trial, the prosecutors with the State of Florida presented evidence of Horwitz's pre-arrest, pre-Miranda silence and argued that the jury should consider this silence as evidence of Horwitz's consciousness of guilt. The issue in the case was whether the prosecutor could introduce evidence of a defendant's pre-arrest, pre-Miranda, silence where the defendant does not testify at trial.

The Court of Appeal reversed and remanded for a new trial. The court held concluded that because Horwitz did not testify at trial, the use of her pre-arrest, pre-Miranda silence was improper as a matter of state constitutional law. The Supreme Court approved of the Court of Appeal's decision, concluding that the use of a Horwitz's silence as substantive evidence of guilt violates the Florida constitutional right against self-incrimination.

Furthermore, the court found that as a matter of Florida evidentiary law, the prosecutor is precluded from using that silence to argue a defendant's consciousness of guilt. In this case, Horwitz argued the Florida Constitution is more protective of the privilege against self-incrimination than the Federal Fifth Amendment. Horwitz concluded that pursuant to Florida Supreme Court precedent, pre-arrest, pre-Miranda silence is only admissible if it is used for impeachment because it was inconsistent with the trial testimony.

Horwitz exercised her right to remain silent pre-arrest and at trial. The Florida Supreme Court has previously stated that the privilege against self-incrimination within the Florida Constitution provided more protection than the privilege within the Fifth Amendment of the US Constitution in State v. Hoggins, 718 So. 2d 761 (Fla. 1998).

The Florida Supreme Court went on to conclude that, "Allowing the defendant's previous silence to be used as substantive evidence of consciousness of guilt would penalize the defendant for exercising that right [to remain silent] at trial." This case is an important confirmation of an individual's right to remain silent before and after an arrest.


Additional Resources

http://www.floridasupremecourt.org/decisions/2016/sc15-348.pdf State v. Horwitz, SC15-348 (2016) - Visit the website of the Florida Supreme Court to read the entire opinion decided on May 5, 2016.


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The attorneys of Pumphrey Law represent clients charged with a felony, a misdemeanor, and DUI criminal offenses. We pay attention to recently decided cases that impact the criminal justice system. Contact our offices at (850) 681-7777 to schedule an initial consultation, either in the office or on the phone.

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Don Pumphrey Jr.
Donald Pumphrey Jr.

Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.

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