Can A Prosecutor Comment On A Defendant’s Post Arrest Silence At Trial?

May 16, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In the event that someone is arrested, they should remain silent and ask for an attorney. The right to remain silent is rooted in the idea that someone should never be forced to serve as a witness in their own prosecution. 

But this raises the question – can a prosecutor comment on a defendant’s silence, and claim that their refusal to speak with police is itself evidence of guilt? The answer is no. This article will explore the rules surrounding comments on post-arrest silence in Florida.

If someone is arrested and charged with a crime, they should exercise their right to remain silent and right against self-incrimination under the Fifth Amendment to the U.S. Constitution. This is a smart decision, as responding to an officer’s post-Miranda questions about the alleged crime without an attorney present will almost always hurt someone’s defense.

Upon being taken into custody and subject to interrogation, a person’s Miranda rights kick in. Officers are constitutionally obligated to notify the individual they have arrested of their Fifth Amendment right to remain silent, the fact that anything they say can and will be used against them, and their right to have an attorney present during questioning.

When someone invokes their right to remain silent upon being arrested and declines to testify at trial, the prosecution cannot comment about that silence. This rule applies to all evidence and argument, including impeachment evidence (such as when a prosecutor calls the accuracy of the defendant’s trial testimony into question). Hopkins v. State, 286 So.3d 335 (Fla. 4th DCA 2019). Even if a defendant elects to take the stand at trial, a prosecutor cannot question them about their decision to remain silent upon being arrested. Doyle v. Ohio, 426 U.S. 610 (1976).

Notably, the due process clause of the Florida Constitution prohibits comments on a defendant’s post-arrest silence – regardless of whether Miranda warnings had been given at the time. Mack v. State, 58 So.3d 354 (Fla. 1st. DCA 2011). This protection is rooted in the principle outlined in the U.S. Constitution – that no person should be compelled to be a witness against himself.

This rule does not just apply to prosecutors, but the attorneys of co-defendants. In Spivey, the Florida Supreme Court held that a defendant’s rights were violated when Spivey took the stand and was cross-examined by his co-defendant’s attorney about his decision to remain silent after his arrest. Spivey v. State, 529 So.2d 1088 (Fla. 1988).

Examples of when the prohibition of comments on post-arrest silence would be violate include the following:

• The prosecutor says during a closing statement: “When the police arrested Jim, did he say a single word about being innocent? No. He stayed completely silent. Why? Because he was guilty and had no excuse.”
• The defendant claims self-defense upon testifying at trial, but the prosecutor says: “You didn’t tell the police that when you were arrested, did you? You just stayed silent, right?”
• The prosecutor or a co-defendant’s attorney calls the arresting officer to the stand, who testifies about the defendant’s post-arrest silence

In State v. Hoggins, the Florida Supreme Court ruled that an attorney cannot elicit testimony from a law enforcement officer that discusses the defendant’s decision to remain silent post-arrest. This case clarified that the ban on comments relating to post-arrest silence applies not just to attorneys, but police witnesses as well. State v. Hoggins, 718 So. 2d 761 (Fla. 1998)  

In sum, prosecutors, co-defendant’s attorneys, and law enforcement officers are all prohibited from commenting on the post-arrest silence of a defendant. If someone invokes their right to remain silent after being read a Miranda warning, a comment on their post-arrest silence at trial could lead to a mistrial or a conviction being overturned on appeal.

Criminal Defense Attorney in Tallahassee, FL

If someone is concerned about a case involving a potential violation of their Miranda rights, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Don Pumphrey Jr.  is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the criminal defense lawyers at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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