1513

You have discretion to rule either way. If I were the judge, I would exclude it as hearsay. I think silence is ambiguous under these circumstances.

Does it matter whether the accusation is made before or after criminal charges were filed?  After all, the police warn you that you have a right to remain silent.

In this case, it probably doesn’t matter. He is not in custody or being accused by law enforcement, in which case his 5th Amendment right against self-incrimination would prevent the state from using silence against him. But obviously, if a person has been arrest, warned and hired a lawyer, a judge would be hard-pressed to conclude that silence is an adoption of the truth of an accusation.

Questions? Email tanford@indiana.edu and refer to 1513.


Problem 15C. Assuming the press release is signed by the president and CEO, what objection(s) could the defense make to its admissibility? When you think you know the answer, click here.