Silence isn’t always golden

A recent Georgia Court of Appeals case points out that, in a criminal case, the defendant’s silence isn’t always golden. Let me set the stage. Lawton was a suspect in a sex crime case. The detective called Lawton and asked to talk to him about the matter. Lawton agreed to meet the detective for the interview but didn’t show up. The detective called Lawton again and they set another time for an interview. Again, Lawton didn’t show up. Warrants were issued and Lawton was found four days later in Florida.

At Lawton’s trial, the detective was allowed to testify about the missed appointments and the flight to Florida. Lawton was convicted and appealed.

Georgia has a rule called the Mallory Rule, from a 1991 Houston County case involving the murder of Shelby Fields. Dr. Vincent Mallory was charged with her murder and convicted, only to be overturned later on appeal. One of the points on appeal was that Mallory’s not coming forward but waiting on the police to contact him was admissible at trial. The Georgia Supremes ruled that henceforth: “We take this opportunity to hold that in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative…[and] such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.”

The code section on which that opinion was based has changed, so the viability of the Mallory Rule is questionable now, but the Court of Appeals went around Mallory and held that “Lawton actually spoke with the officer and agreed to meet with her. In spite of his agreement, he failed to appear at the meetings. The officer’s testimony was limited to noting the inconsistencies between Lawton’s statements and his behavior. This does not violate Mallory.”

So, what could Lawton have done differently? I think had Lawton simply declined to meet with the detective, his pre-arrest silence could not have been used against him. Silence can be golden, but broken promises are admissible in a trial and can come back to bite you.

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock ‘n’ roll and politics. These articles are not designed to give legal advice but are designed to inform the public about how the law affects their daily lives. Contact Burke at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see, and visit his website, www.kellyrburke.com, to view prior columns.

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