Arizona appeals court rules the right to remain silent is absolute

The right of those accused of crimes to remain silent is absolute and can’t then be used against them at trial, the Arizona Court of Appeals has ruled.

And, more to the point, it doesn’t matter if they pick and choose which questions from police to answer and which to turn away.

In the new ruling, the judge rejected prosecutors’ claims that Giovani Melendez, a suspect in the shooting of another man, waived his constitutional rights when he agreed to answer some questions by police. Melendez claimed it was self-defense.

What became a legal issue is that while Melendez answered some questions by a detective, he refused to answer others, making comments including, “I still want to hold myself on some things’’ and “I’ll pass this question.’’

At trial, Melendez said he thought the other person was going to attack him.

The appellate court noted that the prosecutor, questioning Melendez on the stand, specifically and repeatedly asked about those statements to police. And in closing arguments, the prosecutor again mentioned Melendez’s decision not to answer certain questions.

The jury sided with the prosecution, finding Melendez guilty of aggravated assault, and a trial judge sentenced him to a presumptive term of 7.5 years in prison.

When Melendez appealed, an attorney for the state argued that he had effectively waived his Fifth Amendment rights because he did not remain completely silent.

Appellate Judge Michael Brown acknowledged that, after being informed of his rights, he voluntarily spoke with the detective. Brown said there was nothing to suggest he was intimidated, coerced or deceived.

But Brown, writing for the three-judge panel, said it is clear Melendez repeatedly told the detective he did not want to talk about the shooting, and that the detective, in her responses to him, affirmed that was his right.

“Nothing in the Miranda warnings informs a suspect that if he relies on his Fifth Amendment right to be silent, completely or partially, his exercise of that right can be used against him at trial,’’ the appellate judge wrote.

“Logically, this means a court cannot properly find a suspect has ‘waived’ that consequence,’’ Brown continued. “Instead, a suspect would reasonably presume the opposite — that he can exercise his right to remain silent by refraining from answering all or some questions posed to him.’’

What the state is arguing, the judge said, runs contrary to law.

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“The warnings required by Miranda would have to be amended to inform a suspect that not only what he says may be used against him, but what he does not say will also be used against him,’’ Brown wrote.

“The warnings have not been amended,’’ he said. “And allowing the state to penalize a defendant at trial for his earlier silence when he was not informed of that consequence would improperly relieve the state of its burden to prove waiver.’’

It also would not be balanced, said Brown, as Miranda warnings emphasize the dangers of choosing to speak but don’t warn suspects of “adverse consequences’’ of choosing to remain silent.

Moreover, the problems of the state’s position are far-reaching, the judge said.

He said allowing a jury to hear about a suspect’s silence, whether partial or complete, would make the assertion of that right more costly by, in essence, allowing a suspect to incriminate himself without being aware he was doing so.

Nor was the appellate court convinced that the decision to answer some questions but not others somehow shows that the person being interrogated waived that right.

“In each instance, a suspect is exercising his right not to respond, consistent with what he is told he can do at the outset of the interrogation,’’ Brown wrote.

What it comes down to, the appellate court concluded, are “basic principles’’ of due process and fundamental fairness.

In overturning the conviction, the appellate court said the prosecutor’s improper comments clearly affected the case.

In essence, the judges said, Melendez’s claim of self-defense asked the jury to accept his version of events and not those of the other person as advanced by the state. In bringing up his refusal to answer questions, they said, the prosecutor undermined his credibility.

“A reasonable jury would understand these comments (by the prosecutor) to mean that because Melendez failed to timely explain his version of events, it is more likely he was hiding the truth,’’ Brown said.

Maricopa County Attorney Rachel Mitchell said at a news conference she has not decided whether to retry the case.