Maryland Criminal & Immigration Lawyer Blog
The Fifth Amendment to the U.S. Constitution protects accused people from being forced to give testimony that could tend to incriminate them. In Maryland, defendants have even greater protection under Article 22 of the Declaration of Rights. Under state law, any prosecutorial comment that implies to jurors that they should hold a defendant’s silence against them is improper. Having a skilled Maryland criminal defense lawyer on your side when a prosecutor crosses this line (or other lines) is often crucial to protecting your rights.
A 2021 attempted murder case here in Montgomery County serves as an example of this protection in action. In the early morning hours of April 18, 2021, a man wearing khaki pants shot F.G. outside a local restaurant and bar. The state put two men, J.D. and A.C., on trial for attempted murder in connection with the shooting.
At the men’s trial, several witnesses offered testimony, but some key figures did not testify. The victim, who survived his injuries, did not take the stand, and neither did J.D.
During closing arguments, J.D.’s attorney argued zealously that the state’s case had too many holes. The lawyer noted that “there was a lot of evidence” not before the jury, including an absence of gunshot residue or incriminating fingerprints. The prosecutor, in his closing, reminded the jury that they “took an oath to be bound by the evidence.” The prosecutor then pointed out that “no one came in here and said, ‘Oh, I was, happened to be at the club that night, but [the man in the khaki pants is] not me.’ That was an argument. No one came in here and said, ‘Oh, I was just supposed to be meeting up with a girl that night.’”
The jury convicted J.D. of first-degree attempted murder and acquitted A.C. of all charges.
The Appellate Court, however, reversed that conviction and ordered a new trial. The prosecutor, when he made his closing argument, violated J.D.’s constitutional rights.
On the federal side, there’s the Fifth Amendment, which protects people from being forced to be “a witness against themselves.” As part of that right against self-incrimination, the law says that prosecutors may not comment disparagingly on a criminal defendant’s decision not to testify in their defense. Additionally, Article 22 of the Maryland Declaration of Rights expressly says that a prosecutor may not “comment on a defendant’s failure to testify.” A defendant’s rights under Maryland law are broader than those provided by the Fifth Amendment.
Insinuating or Implying a Duty to Testify
Maryland law, specifically, calls upon the courts to analyze whether a prosecutorial remark has implied to the jury that they should consider the defendant’s decision not to testify “in the face of the accusation of the prosecuting witness as an indication of his guilt.” If a comment raises such a potential inference, then it is improper.
The Supreme Court decided one of Maryland’s key cases in this area in 2001. In that case, the state accused the defendant of having stolen goods. In closing arguments, the prosecutor said, “What explanation has been given to us by the defendant for having the leather goods? Zero, none.” That was inappropriate, according to the court, because it raised an implication that the jury should hold it against the defendant that he himself did not offer an explanation, as opposed to merely pointing out a general shortage of evidence.
In J.D.’s case, the prosecutor’s comments “insinuated that [the accused] had a duty to explain that he was not the assailant. And by arguing that ‘no one’ had said what [J.D.] alone could have said, the prosecutor effectively suggested that [J.D.] had an obligation to testify at trial.”
In this case, the accused had the benefit of skillful counsel at both the trial and appellate levels. The man’s trial attorney wisely objected to the prosecutor’s closing remarks, which “preserved” the issue for his later appeal.
This case illustrates how much goes into fully protecting an accused person’s rights. From pretrial preparation to in-trial objections to post-trial motions and beyond, having legal counsel that understands the law and the rules of procedure and knows how to use them to protect you is crucial. If you are facing charges, the Maryland criminal defense attorneys at Anthony A. Fatemi, LLC can help. The sooner you call, the sooner we can get started working for you and protecting your rights. Contact us today at 301-519-2801 or via our online form to set up your consultation.