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It is common to see police interrogations in television shows, where a suspect is read his Miranda rights including the right to remain silent, and then proceeds to talk to police anyway.

Ordinarily, statements made by a criminal defendant after he or she invokes the right to remain silent are not admissible in evidence-unless the defendant chooses to testify. This was explored by Maryland’s Court of Appeals in an opinion filed this week in the case of Clement Reynolds v. State of Maryland.

The Court’s opinion indicates that Reynolds was arrested at JFK airport in 2014, on an arrest warrant issued years before for the murder of a victim named King in Montgomery County. Police had learned that Reynolds had been using an alias for years, and he was held in New York until Montgomery County detectives could verify his fingerprints. Reynolds did tell the detectives he understood his right to remain silent, then denied that his name was Reynolds. When told they had overwhelming evidence to convict him of murder, he said he had nothing to say.

The Detectives continued interrogating him anyway, and he made a number of other statements. At trial, the judge ruled that Reynolds had invoked his 5th Amendment right to remain silent, and his statements after “I have nothing to say” could not be used as admissions against him. However, at trial Reynolds chose to testify. He claimed he was in New York at the time of the murder, but admitted he knew King and helped him move to Maryland, and transported marijuana to him in Maryland. The prosecutor was then allowed to cross-examine him with his statements made to the police after claiming he did not want to talk, including the claim that he was in the Virgin Islands at the time of the murder and had never been to Maryland other than to pass through.

The jury convicted Reynolds of murder and other charges and he appealed. The Court of Appeals agreed with the intermediate appellate Court that the trial judge properly allowed the State to cross-examine the defendant with statements made even after he tried to invoke his right to remain silent. These statements were different than post arrest silence, which cannot be used against a defendant.

Here, the Court found that statements made which contradicted his alibi could be used to impeach the defendant’s credibility. So, criminal defendants who talk even after invoking their rights may have their statements used against them in they take the witness stand.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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