Defendant’s Silence May Not Be Used Against Him By Prosecutor {Rittenhouse Trial}

During the Rittenhouse Trial, we saw District Attorney (DA) Binger admonished by the Judge for prying into the Defendant having remained silent up until his testimony.

While the law is apparently obvious to attorneys, I had not heard of it before.

And finding the answer was not so simple.

But after searching I found that this was indeed well-established 5th Amendment Jurisprudence.

Largely under the case-law of Griffen v. California, and others.

What case law establishes that prosecutors can not use a Defendant’s silence against them?

Perhaps the most popular case is Griffen v. California. Which asserted that a prosecutor or district attorney can not use a Defendant’s silence against them.

Griffen v. California: The 5th Amendment forbids comment on accused’s silence, as evidence of guilt.

While I will not dare to get into the details of the case here as they are VERY vulgar. The law surrounding the case remains the same.

At his trial, Griffen remained silent and did not provide testimony, which the Prosecution attempted to use against him.

During the time California’s State Constitution allowed for a Prosecutor to tell a Jury that silence by a Defendant in a trial could infer guilt.

As a result, Griffen was convicted of murder and was sentenced to death.

However, Griffen raised the issue before the California Supreme Court, which agreed with the lower Court. But he eventually successfully petitioned the Supreme Court and appealed the case. The Supreme Court decided that a Defendant’s remainder of silence could not be used against him.

Here’s the deal though, this Decision was largely built upon the Case Law established by an earlier case Malloy v. Hogan.

Malloy V. Hogan:

The case law upon which Griffen v. California was pinned on lay within Malloy v. Hogan.

In this case, Malloy was arrested for a gambling-related charge. Malloy was arrested and convicted for illegal gambling. For that, he spent 90 days in jail before being released. Then 2 years latter he was dragged into court and asked to testify about gambling in the Hartford, Connecticut area.

After refusing to answer a single question, he was jailed indefinitely. So he filed a writ of habeas corpus, and his case was taken before the Supreme Court.

The Court determined that 5th Amendment protections extend to State prosecutions via the 14th Amendment. This case extended the US 5th Amendment into state-related cases. Recognizing Defendants in both Federal and State cases 5th Amendment protections.

DA Binger Admonished for Using Rittenhouses Silence Against Him

On November 10th, 2021 Kyle Rittenhouse took to the stand to testify. During cross-examination, DA Binger began to ask Rittenhouse about how his remainder of silence during the trial may have affected his Testimony.

The Defense objected, the Jury was asked to leave the Court, and Judge Schroeder made a scene that took the internet by storm.

In a moment that went viral, Judge Schroeder tore into DA Binger for what he said was a clear violation of well-established law over the last 40 or 50 years.

Eventually leading the Rittenhouse Defense to file a Motion for Mistrial, with prejudice. Which the Judge took under advisement.

The Bottom Line On A Defendant’s Right to Remain Silent

The Right to Remain Silent extends well beyond one’s right not to talk to the police. Not only do you and everyone else have the right to remain silent at a Trial as long as you want. No Prosecutor or other Party can use that right against you.

The Rittenhouse Trial did an excellent job at making this a well-known precedent of law. Setting the jurisprudence well within the public’s mind.

While this was once common knowledge among attorneys, the public at large can learn from this lesson.

Further: In the Rittenhouse Trial the Defense accused the Prosection of trying to provoke a mistrial. Which may be more common than you think! And we will be addressing this issue in a future article. Until then I encourage you to sign -up for for the best self-help legal course available.