Miranda Madness

Judge Bruce Schroeder’s scolding of the prosecutor during the Ritttenhouse trial drew a great deal of media attention.  Unfortunately, media outlets were less interested in discussing the underlying problem that caused the judge’s eruption. 

The underlying problem is a common one.  Prosecutors frequently—some, routinely—will comment on defendants’ post-arrest, post-Miranda silence.  In the Rittenhouse trial, the prosecutor did this in two ways.  FIRST, he asked Rittenhouse on cross-exam to admit that this is the first time he’s chosen to talk about the incident, thus implying that he had declined to talk to police upon his arrest.  SECOND, because the state has to go first at the trial, the prosecutor also got Rittenhouse to admit that he had the “benefit” of listening to the state’s witnesses and seeing the state’s video evidence before finally talking about the incident.

These ploys are absolutely maddening to defense lawyers.  As for the FIRST prosecutorial claim, above, it’s not even true.  The video shows that when being questioned, Rittenhouse said that he wanted a lawyer for his case, yes, but also that he wanted to talk to police before a lawyer was assigned to him.  Because they were scared off by the word “lawyer,” the police stopped the interview.  But Rittenhouse did try to talk to the police. 

As for the second prosecutorial tactic, above, it’s completely unfair to blame the defendant for enjoying the “benefit” of listening to the state’s case first, as he has no control over the order of the presentation of evidence.  The state must go first.  It’s the state’s freaking case, and the state has to prove it!  Imagine being on a jury and having the defendant defend an allegation before the state even makes the allegation and presents its evidence.  That would be nonsensical.  Yet the prosecutor still tried to use this against Rittenhouse, as prosecutors routinely do against other defendants.  Pure sophistry and spin.   

The defense objected to these two prosecutorial lines of attack, arguing that the ploy was an improper comment on the defendant’s post-arrest and post-Miranda silence.  (Commenting on a defendant’s pre-arrest and pre-Miranda silence is another issue entirely, and is well beyond the scope of this post.)  The prosecutor countered the defense objection with its usual argument: the state was merely establishing that Rittenhouse’s testimony was unbelievable because he withheld it until late in the trial so he could tailor it to the evidence. 

But isn’t that the same thing as commenting on Rittenhouse’s post-arrest and post-Miranda invocation of the right to remain silent (which he never even invoked anyway)?  Of course it is!  That’s why the judge said he was “astonished” when the prosecutor went down this path.  And that’s why the judge had his now-famous in-court eruption. 

The problem that Rittenhouse’s prosecutor ran into is that most Miranda rules and principles, while once firm, have been slowly degraded by nonsensical court opinions designed to benefit the state.  That allows prosecutors to get away with a lot of shenanigans in most Miranda-related circumstances.  However, this particular rule about not commenting on a defendant’s post-arrest / post-Miranda silence, while not exactly set in stone, seems to have retained much of its original punch.  That is, it hasn’t yet been completely eaten away by nonsensical, pro-state court decisions.

For more Miranda madness, see my article The New Miranda Warning, in which I proposed a new Miranda warning and process that would end a lot of this governmental cheating.