Protection Under the Fifth Amendment Right against Self-Incrimination is Applicable to Defendant’s Pre-Arrest Silence

By: Wallin & Klarich

In the case of People v. Waldie, harmless error was established where the prosecutor was allowed to comment on the defendant’s failure to return numerous calls by police prior to arrest. A jury had convicted defendant Waldie of sex crimes that amounted to two counts of lewd and lascivious conduct against a child under the age of 14 years. On appeal, defendant claimed the court erred by permitting comment on defendant’s pre-arrest silence and his lack of cooperation with the investigation.

In Waldie, the lead detective testified that defendant never participated in a police interview, even after repeated phone calls, before he was arrested. The court overruled the defense counsel’s objection to the detective’s testimony on the grounds of hearsay. The court instructed the jury that defendant’s statement promising he would call back tended to show consciousness of guilt. (CALJIC No. 2.03.)

In closing argument, the prosecutor commented that defendant did not cooperate with the police investigation. On criminal appeal, defendant argued that his rights of due process and protection against self-incrimination were violated by the foregoing. Defendant urged this court to follow the majority view that the prosecution may not use evidence of defendant’s pre-arrest silence as evidence of guilt in the case in chief.

Court concluded it was error under the Fifth Amendment to allow evidence and argument about defendant’s pre-arrest silence, but the error was deemed harmless.

Knowing your rights is tantamount to protecting your freedom. The Fifth Amendment right against self-incrimination often arises in the context of pre-arrest silence or statements. Wallin & Klarich has over 30 years of experience protecting individuals’ constitutional rights. Wallin & Klarich is centrally located in Orange County, California, with offices throughout Southern California. The firm boasts an AV rating from Martin Dale Hubble, the highest rating any law practice can obtain. Contact a skilled California criminal defense attorney at Wallin & Klarich for a free consultation by calling 1-888-280-6839. Also, visit us online at to learn more about your case and what can be done.

Posted In: Criminal Appeals