by James Eckert, Monroe County Assistant Public Defender
The Court of Appeals, Fahey, J. writing for the court, held: "as a matter of state evidentiary law, that evidence of a defendant's selective silence generally may not be used by the People as part of their case-in-chief, either to allow the jury to infer the defendant's admission of guilt or to impeach the credibility of the defendant's version of events when the defendant has not testified." (People v Williams, 2015 NY Slip Op 02866 [4/7/15]) Thus, if a defendant waives Miranda, speaks to police about rape accusations, but refused to answer whether he had sex with the complainant, his refusal to answer could not be used to imply consciousness of guilt (the prosecution said the defendant "did not deny" having sex with the complainant) or to cast doubt on his other statements about the incident. "A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all." The defendant's DNA was found in the complainant, he testified at the Grand Jury that sex was consensual, but did not testify at trial.
While this is merely an extension of the general rule that a defendant's silence cannot be used against him, it is important to have it clarified. The court noted that there are unusual circumstances in which silence will be admissible (People v Rothschild, 35 NY2d 355  [defendant police officer had a duty to report to his supervisors if he was taking the bribe money as part of a "sting"]; People v Savage, 50 NY2d 673  [defendant told police he shot victim during an altercation, properly cross-examined on his failure to make claim that victim was trying to rob him, as he testified at trial]).
The primary difference was that those two cases involved cross-examination, not introduction of the defendant's silence as part of the prosecution's case in chief, "In those cases, the People used conspicuous omissions from the defendants' statements to police during cross-examination of the defendants, in order to impeach the credibility of the exculpatory testimony provided by the defendants at trial. Here, by contrast, the People introduced, as part of their case-in-chief, evidence regarding defendant's failure to tell the detective during custodial interrogation that he and the victim had consensual sex." The prosecution claimed that they were, effectively, cross-examining the defendant's grand jury testimony. However, as the court pointed out, the prosecution chose to introduce this testimony itself. "The People may not introduce evidence that they deem favorable to defendant on their direct case and impeach that evidence, also on their direct case, with evidence of defendant's silence." The court also noted that they introduced the selective silence before the grand jury testimony.
Therefore, the rule in New York is that "Evidence of a defendant's selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as 'a device for impeachment' of a defendant's trial testimony in limited and unusual circumstances".
Two judges would have held the error harmless.