Joseph D. Nohavicka
Joseph D. Nohavicka ()

The famed historian, William Durant, wrote, “One of the lessons of history is that nothing is often a good thing to do and always a clever thing to say.” That axiom, however, is not true in the context of New York’s Fifth Amendment right-to-remain-silent jurisprudence.

In People v. Vining,1 the Court of Appeals held that it was proper for the trial court to admit into evidence a recorded phone call between an incarcerated defendant and his ex-girlfriend as an adoptive admission2 where the defendant did not directly deny allegations of criminality, but instead responded evasively. The distilled holding is that private parties do not acquire a constitutional right to be silent in the face of an accusation just because law enforcement can overhear what they are saying. Vining broadly imposes an affirmative duty on individuals to speak when confronted with an accusation.

The Vining precedent is concerning and criminal defense attorneys must immediately convey to imprisoned clients the peril of discussing their case with anyone other than their attorney, and how to respond if an allegation against them is made during any post-arrest conversation especially when the conversation may be overheard by law enforcement, including Department of Corrections personnel.

One of the things that you drill into the heads of your client when they are incarcerated, in addition to the admonition not to speak to anyone about their case, is the fact that all telephone conversations conducted from the prison are taped. And if they fail to heed that advice, at their trial they may hear the prosecutor saying something like this to the jury:

[E]ach inmate is put on notice that their calls are recorded. There are signs posted near all of the telephones that say they are recorded. If you knew that you were being recorded and you were innocent, wouldn’t that be all the more reason for you to deny it? … He couldn’t deny it to her because she was there. Because she was there when he did that to her.3

That is an excerpt from the prosecutions summation in Vining, a domestic violence case. During the trial, the court allowed the prosecutor to play a telephone call made from defendant to the victim while he was incarcerated at Riker’s Island in New York City, as an adoptive admission by silence. Significantly, there are signs posted in plain view near the telephones warning inmates that the calls are monitored and a recording on the phone advises that the phone calls are recorded.

During the call, the ex-girlfriend repeatedly accused the defendant of breaking her ribs. The defendant did not deny the allegations, and instead gave non-responsive and evasive answers. For example, after she forcefully stated many times that he had broken her ribs and shown no sympathy, his response was, “so I’m a threat to you?” Then she said to the defendant that he needed time to think and change so he would not do this to anyone else. He responded by asking whether his brother had called her.

Acknowledging that state evidentiary rules prohibit the government from using for any purpose a defendant’s failure to speak or to assert affirmatively innocence in the face of inquiry by law enforcement, the Court of Appeals nevertheless held that the dialogue constituted an adoptive admission and the trial court did not abuse its discretion when it made the threshold determination that defendant heard and understood the victim’s accusations against him but chose to give evasive and manipulative responses.

Criminal defendants must be made to understand that conversations between civilians (anyone not law enforcement including family) are not protected by the right to remain silent. If, post-arrest, a criminal defendant is accused by anyone of something that they did not do, they must immediately, affirmatively, and unequivocally deny the allegation. Silence, evasion or ambiguity in the face of an accusation levied against a post-arrest defendant are contraindicated.

For example, the reply to an accusation of robbery: “I am a working man. I work for a living,” will probably be deemed as an evasive answer and therefore warrant admission into evidence of both the defendant’s reply and the inculpatory statement.4 Also, responding, “What can I say”5 in reply to an accusation of burglary, or “I don’t know anything about it; give me a break”6 in reply to an accusation of robbery were held to be evasive and properly used against the defendant.

In a dissenting opinion in Vining in which Chief Judge Janet DiFiore joined, Judge Jenny Rivera asserted that the “use of the recording here is nothing more than an improper attempt to allow a jury to infer an admission from the silence of a defendant where such silence has no probative value.” During oral argument Judge Rivera asked the government whether the posted and recorded warnings at Riker’s should be supplemented to state, in addition to anything the detainee says is being monitored and can be held against them, that if you don’t say anything, that might also be used by the D.A.?7 (This commentator’s answer is, yes.).

The kaleidoscopic semantics of silence (or evasion) in the context of dialogue between an accuser, whether by a civilian, law enforcement (or their agent), is too variable8 and complex for a jury to determine, and, therefore, is a topic unsuitable for a goes-to-the-weight and not admissibility solution even with robust jury instructions, as was the case in Vining. If an imprisoned person’s choice to not respond to an accusation made in earshot of law enforcement can be used against them, then the government is being permitted legally to execute an end-run around one of the most important viable constitutional safeguards that citizens of New York still have.

Understanding the impact of Vining is important not only to the criminal defense Bar but to the general public as well. It amounts to a sea change in New York’s constitutional law that cuts against the natural right to avoid confrontation, self-incrimination or to simply change the subject of a conversation by saying nothing.

Endnotes:

1. 2017 NY Slip Op. 01144.

2. Id. (“An adoptive admission occurs ‘when a party acknowledges and assents to something already uttered by another person, which thus becomes effectively the party’s own admission’.”) (citing People v. Campney, 94 N.Y.2d 307, 311 (1999), in turn citing 4 Wigmore, Evidence §1609, at 100 [Chadbourne rev]).

3. Id.

4. See, e.g., People v. O’Donnell, 315 Ill. 568, 572, 146 N.E. 490, 492 (1925).

5. See, e.g., People v. Andrae, 305 111. 530, 533, 137 N.E. 496, 498 (1922).

6. See, e.g., People v. Popilsky, 366 Ill. 268, 271, 8 N.E.2d 640, 641 (1937).

7. Oral Argument People v. Vining (Jan. 3, 2017), https://www.nycourts.gov/ctappS/arguments/2017/Jan17/Video/1.html [at 19:55] (site last visited March 7, 2017).

8. Bret Ruber, Comment, “Adoptive Admissions and the Duty to Speak: A Proposal for an Appropriate Test for the Admissibility of Silence in the Face of an Accusation,” Cardozo Law Review, 36 Cardozo L. Rev. 299, 311 n. 84 (2014).

The famed historian, William Durant, wrote, “One of the lessons of history is that nothing is often a good thing to do and always a clever thing to say.” That axiom, however, is not true in the context of New York ‘s Fifth Amendment right-to-remain-silent jurisprudence.

In People v. Vining,1 the Court of Appeals held that it was proper for the trial court to admit into evidence a recorded phone call between an incarcerated defendant and his ex-girlfriend as an adoptive admission2 where the defendant did not directly deny allegations of criminality, but instead responded evasively. The distilled holding is that private parties do not acquire a constitutional right to be silent in the face of an accusation just because law enforcement can overhear what they are saying. Vining broadly imposes an affirmative duty on individuals to speak when confronted with an accusation.

The Vining precedent is concerning and criminal defense attorneys must immediately convey to imprisoned clients the peril of discussing their case with anyone other than their attorney, and how to respond if an allegation against them is made during any post-arrest conversation especially when the conversation may be overheard by law enforcement, including Department of Corrections personnel.

One of the things that you drill into the heads of your client when they are incarcerated, in addition to the admonition not to speak to anyone about their case, is the fact that all telephone conversations conducted from the prison are taped. And if they fail to heed that advice, at their trial they may hear the prosecutor saying something like this to the jury:

[E]ach inmate is put on notice that their calls are recorded. There are signs posted near all of the telephones that say they are recorded. If you knew that you were being recorded and you were innocent, wouldn’t that be all the more reason for you to deny it? … He couldn’t deny it to her because she was there. Because she was there when he did that to her.3

That is an excerpt from the prosecutions summation in Vining, a domestic violence case. During the trial, the court allowed the prosecutor to play a telephone call made from defendant to the victim while he was incarcerated at Riker’s Island in New York City, as an adoptive admission by silence. Significantly, there are signs posted in plain view near the telephones warning inmates that the calls are monitored and a recording on the phone advises that the phone calls are recorded.

During the call, the ex-girlfriend repeatedly accused the defendant of breaking her ribs. The defendant did not deny the allegations, and instead gave non-responsive and evasive answers. For example, after she forcefully stated many times that he had broken her ribs and shown no sympathy, his response was, “so I’m a threat to you?” Then she said to the defendant that he needed time to think and change so he would not do this to anyone else. He responded by asking whether his brother had called her.

Acknowledging that state evidentiary rules prohibit the government from using for any purpose a defendant’s failure to speak or to assert affirmatively innocence in the face of inquiry by law enforcement, the Court of Appeals nevertheless held that the dialogue constituted an adoptive admission and the trial court did not abuse its discretion when it made the threshold determination that defendant heard and understood the victim’s accusations against him but chose to give evasive and manipulative responses.

Criminal defendants must be made to understand that conversations between civilians (anyone not law enforcement including family) are not protected by the right to remain silent. If, post-arrest, a criminal defendant is accused by anyone of something that they did not do, they must immediately, affirmatively, and unequivocally deny the allegation. Silence, evasion or ambiguity in the face of an accusation levied against a post-arrest defendant are contraindicated.

For example, the reply to an accusation of robbery: “I am a working man. I work for a living,” will probably be deemed as an evasive answer and therefore warrant admission into evidence of both the defendant’s reply and the inculpatory statement.4 Also, responding, “What can I say”5 in reply to an accusation of burglary, or “I don’t know anything about it; give me a break”6 in reply to an accusation of robbery were held to be evasive and properly used against the defendant.

In a dissenting opinion in Vining in which Chief Judge Janet DiFiore joined, Judge Jenny Rivera asserted that the “use of the recording here is nothing more than an improper attempt to allow a jury to infer an admission from the silence of a defendant where such silence has no probative value.” During oral argument Judge Rivera asked the government whether the posted and recorded warnings at Riker’s should be supplemented to state, in addition to anything the detainee says is being monitored and can be held against them, that if you don’t say anything, that might also be used by the D.A.?7 (This commentator’s answer is, yes.).

The kaleidoscopic semantics of silence (or evasion) in the context of dialogue between an accuser, whether by a civilian, law enforcement (or their agent), is too variable8 and complex for a jury to determine, and, therefore, is a topic unsuitable for a goes-to-the-weight and not admissibility solution even with robust jury instructions, as was the case in Vining. If an imprisoned person’s choice to not respond to an accusation made in earshot of law enforcement can be used against them, then the government is being permitted legally to execute an end-run around one of the most important viable constitutional safeguards that citizens of New York still have.

Understanding the impact of Vining is important not only to the criminal defense Bar but to the general public as well. It amounts to a sea change in New York ‘s constitutional law that cuts against the natural right to avoid confrontation, self-incrimination or to simply change the subject of a conversation by saying nothing.

Endnotes:

1. 2017 NY Slip Op. 01144.

2. Id. (“An adoptive admission occurs ‘when a party acknowledges and assents to something already uttered by another person, which thus becomes effectively the party’s own admission’.”) (citing People v. Campney , 94 N.Y.2d 307, 311 ( 1999 ) , in turn citing 4 Wigmore, Evidence §1609, at 100 [Chadbourne rev]).

3. Id.

4. See, e.g., People v. O’Donnell , 315 Ill. 568, 572 , 146 N.E. 490, 492 ( 1925 ) .

5. See, e.g., People v. Andrae, 305 111. 530, 533, 137 N.E. 496, 498 (1922).

6. See, e.g., People v. Popilsky , 366 Ill. 268, 271 , 8 N.E.2d 640, 641 ( 1937 ) .

7. Oral Argument People v. Vining (Jan. 3, 2017), https://www.nycourts.gov/ctappS/arguments/2017/Jan17/Video/1.html [at 19:55] (site last visited March 7, 2017).

8. Bret Ruber, Comment, “Adoptive Admissions and the Duty to Speak: A Proposal for an Appropriate Test for the Admissibility of Silence in the Face of an Accusation,” Cardozo Law Review, 36 Cardozo L. Rev. 299, 311 n. 84 (2014).