Tulsa Attorney BlogWhen You Have the Right to Remain Silent, the State of Oklahoma Can’t Talk about It!

Silence Is Golden


criminal defense attorney in TulsaVideo Transcribed: When you have the right to remain silent, the state cannot talk about it at trial. I’m Tulsa Attorney James Wirth and that is the issue that we’re dealing with here. The right to remain silent and specifically bring up that right during a trial proceeding.

So obviously, most people are aware of the right to remain silent from the Miranda case and get Miranda warnings that you see on television. It comes from the Fifth Amendment which says you cannot be compelled to testify against yourself, but it goes beyond that. Not only cannot be compelled to testify, you can’t be compelled to talk about it, but also the state cannot comment on your silence. So the silence and your refusal to testify or talk about it cannot be used or imply guilt.

This was actually recently addressed by a case up on appeal with the Oklahoma Court of Criminal Appeals. Charles v. State of Oklahoma, M-2022-174. It was actually decided on April 27th, 2023, and just decided today. And he, in that case, went before the court’s domestic violence case and he had the opportunity to testify.

We have an opportunity to confront our witness. You have a right to testify and to give your own testimony, but you also have the right to remain silent and not do that. And you have to decide which one you wanna do. Because going either direction could cause issues that could be brought up on appeal, it is common and according to the Oklahoma Court of Criminal Appeals, is best practice for the defendant to put that decision on the record.

So essentially in front of the court reporter, in front of the judge, go through a record advising him of his rights and making sure that he knows he’s got the option of testifying or the option of remaining silent and having him elect which one before the court when it is a jury trial and on the record so that that is part of the record up on appeal in case he makes an issue later, he or she makes an issue later that the right to testify or the right to remain silent was denied.

So it’s common to get those on the record, but in this case, what happened, it wasn’t just done on the record with the court reporter, it was done in front of a jury. And we’ve got case law that it’s pretty clear, and this is what it says in the case. Both the federal and state constitutions guarantee the right of a defendant to remain silent in a criminal trial.

These protections against compelled self-incrimination forbid either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. So we can’t talk about the right to remain silent because that is not evidence the defendant is allowed to remain silent. And in this case, they did talk about it on the record in front of the jury, and that’s where the problem is. They had to see if that is a violation or not.

It says here, the issue here is whether questioning a defendant in the presence of a jury, and they italicized that because that’s what mattered. The fact that it was done in the presence of a jury regarding the decision not to testify infringes upon the defendant’s constitutional rights against self-incrimination. And ultimately, the court found that it is a substantial right here and that that was a violation, but they found that in this case, it did not meet the standard requiring reversal.

So they showed that there was not, this is what it says, we find the appellant has not shown plain error seriously affecting the fairness, integrity, or public reputation of a judicial proceeding or representing a miscarriage of justice. So the court acknowledges it was an error for that to happen, to comment on the defendant’s right not to testify, and to remain silent, but that it wasn’t a substantial enough error to require reversal based on that standard. So if you’re dealing with a circumstance like this, it’s very important to object to it when it happens, because then you get a different standard here rather than the plain error standard that this case was decided upon. But it’s also important for you to know your right. It’s not just your right to remain silent, it’s also your right not to have a decision of your guilt possibly be predicated on your right to remain silent, which means the state cannot talk about it in front of the jury. The jury is instructed that they cannot have that as a basis for them to assign any tiny little bit of guilt.

If you’ve got a question dealing with a criminal case in Oklahoma, you’re gonna wanna talk to an Oklahoma criminal defense lawyer about it privately and confidentially. To get that scheduled with somebody at my office, go online to makelaweasy.com.

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