Prosecutors cannot cross-examine or comment on a defendant’s post-arrest silence

Approximately two months ago, in People v. Deny Quinonez, No. 1-09-2333, the Illinois Appellate court (1st Dist.), affirmed Illinois law that a defendant’s post-arrest silence cannot be used to cross-examine him at trial. This case is significant because it stated that although the federal Constitution does not purport to prohibit the use of silence prior to being given Miranda warnings, the Illinois law has long prohibited such cross-examination.

The court ruled that the Illinois evidentiary rule generally prohibits impeachment of a defendant with his post-arrest silence, regardless of whether it occurred before or after being given Miranda warnings. Such post-arrest silence is not relevant or material. The court further ruled that post-arrest silence may be used for cross examination purposes only if the defendant testifies at trial that he made an exculpatory statement to the police at time of his arrest and when he makes a postarrest statement that is inconsistent with his exculpatory trial testimony.

In Quinonez, the defendant testified at trial that a man was harassing him and had evidently placed drugs on him. The prosecutor questioned the defendant if he had informed the police what had occurred. The Appellate Court reversed stating that since the defendant did not make any statements to the police at the time of his arrest, there were no inconsistent statements that the State could have properly used for impeachment purposes. It reiterated Illinois’ evidentiary rule regarding post-arrest silence and ruled that the cross-examination of the defendant about his silence and the prosecutor’s rebuttal argument regarding that silence were improper. The Appellate Court reversed Quinonez’s conviction and remanded for re-trial.