Fla. Stat, (1981) - Florida State University College of Law

defense. The prejudice is evident, The remedy is a new trial.
Trim TRIAL COUHI: EmED IN l?EmaTrING THE
P~EXXITOR M WCIT FROM DEFENSE WITNESS
RICHARD ELWaD THAT TEE REMAINED
SILENT AJSD DID NOT DISCUSS HIS CASE WIZILF, IN
JAIL AWJTING TRIAL,, IN VIOL3TION OF THE FIETH,
SIXTH, AND FOURTEE" AImmaNm To m u s.
CONSTImON AND ARFICLE I, SECTIONS 9 AND 16
OF 'IZIE: FLORIDA CONSTITUTION.
Wing the cross-examination of defense witness Rihd Ell-, the
prosecutor asked the witness what the defendant had told him, and elicited
f m him the fact that the defendant did not assert his innocence while
awaiting trial in the jail and that the defendant did not discuss his case at
all. (T. 1787-1788). The prosecutor called attention to the fact that the
defendant had said nothing, and that he had not asserted his innocence in talking
to a fellow inmate of the jail while awaiting trial and inferred that an inncent
pan muld not have said nothing. (21. 1787-1788).
In Willinsky v. State, 360 So. 2d 760 @la. 1978), this court discussed
the right of an accused to be free flm feax of attack by the use of post-arrest
Impeachmxlt by disclasure of the legitimate exercise
of the right to sllence is a denial of due process.
It should not be material at what stage the accused
was silent so long as the right to silence is protected
at that stage. The language in Dcryle v. Ohio, 426 U.S.
610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) and United
States v. - Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed.
2d 99 (1975), although set in the context of silence at
arrest, reflects a general policy. me essence of these
holdings is that mchmnt by disclosure of the exercise
of the right to silence is a denial of due process. The
general terms used by the Supra Cburt of the Lhited
States are not limited to arrest, but apply at any stage
where the right to silence is protected. Bid., at 762.
The defendant's right to ramin silent had clearly attached where he
was an inmate of the jail awaiting trial.
His refusal to discuss his case with
other inmates, or even his silence in the face of accusation by an inmate, has
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