tacit admission rule in Illinois

2023Under the tacit admission rule, “[i]t must affirmatively appear that the defendant knew he was being asked about the crime for which he is on trial, for it is the assumption that one similarly situated would ordinarily deny the imputation of guilt which renders admissible defendant’s failure to do so.” People v. Aughinbaugh, 36 Ill. 2d 320, 323 (1967).

2022Accordingly, our supreme court has expressly held that “[w]hile the tacit admission rule obtains in this State, and the silence of a defendant in the face of an accusation of guilt may be shown at his trial as evidence of guilt, such evidence should be received with caution and only when the conditions upon which it becomes admissible are clearly shown to exist.” (Emphasis added.) People v. Aughinbaugh, 36 Ill. 2d 320, 322-23 (1967). ¶ 74 In the present case, the conditions for admitting the recorded phone conversation between defendant and his mother and grandmother while he was in jail have

2019App. 3d 721, 734 (2002) (a statement is admissible as a “tacit admission” “if sufficient evidence supports a finding that, in light of the totality of the circumstances, a defendant remained silent when faced with an incriminating statement, which, if untrue, would normally call for a denial”); People v. Goswami, 237 Ill.

2012Id. (citing People v. Goswami, 237 Ill.

2019See People v. Donegan, 2012 IL App (1st) 102325, ¶ 67 (“the tacit admission rule”); People v. Soto, 342 Ill.

2019App. 3d 38, 53 (1990) (“When a statement is made in the presence and hearing of an accused, incriminating in character, and such a statement is not denied, contradicted or objected to by him, both the statement and the fact of his failure to deny it are admissible in a criminal trial as evidence of his acquiescence in its truth.”). ¶ 17 The tacit admission rule provides, “When a statement that is incriminating in nature is made in the presence and hearing of an accused and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny

2022See, e.g., Jarrett v. State, 453 S.E.2d 461 (Ga. 1995); Ex parte Marek, 556 So. 2d 375, 382 (Ala. 1989).

2019See, e.g. , Jarrett v. State , 265 Ga. 28 , 453 S.E.2d 461 , 463 (1995) (witness in a criminal trial may not testify as to declarant's statements based on the acquiescence or silence of the accused); Ex Parte Marek , 556 So.2d 375 , 382 (Ala. 1989) ("[t]he tacit admission rule *** is hereby abolished"); Commonwealth v. Dravecz , 424 Pa. 582 , 227 A.2d 904 , 906 (1967) (tacit admission rule is untenable).

2022See, e.g., Jarrett v. State, 453 S.E.2d 461 (Ga. 1995); Ex parte Marek, 556 So. 2d 375, 382 (Ala. 1989).

2019See, e.g. , Jarrett v. State , 265 Ga. 28 , 453 S.E.2d 461 , 463 (1995) (witness in a criminal trial may not testify as to declarant's statements based on the acquiescence or silence of the accused); Ex Parte Marek , 556 So.2d 375 , 382 (Ala. 1989) ("[t]he tacit admission rule *** is hereby abolished"); Commonwealth v. Dravecz , 424 Pa. 582 , 227 A.2d 904 , 906 (1967) (tacit admission rule is untenable).

2021“The necessary elements for admissibility under the tacit admission rule are (1) that defendant heard the incriminating statement, (2) that defendant had an opportunity to reply and remained silent, and (3) that the incriminating statement was such that the natural reaction of an innocent person would be to deny it.” People v. Donegan, 2012 IL App (1st) 102325, ¶ 67 , 974 N.E.2d 352 . ¶ 36 Here, Ballard stated she and defendant both ran into the house together after seeing the police approach.

2021“The necessary elements for admissibility under the tacit admission rule are (1) that defendant heard the incriminating statement, (2) that defendant had an opportunity to reply and remained silent, and (3) that the incriminating statement was such that the natural reaction of an innocent person would be to deny it.” People v. Donegan, 2012 IL App (1st) 102325, ¶ 67 , 974 N.E.2d 352 . ¶ 36 Here, Ballard stated she and defendant both ran into the house together after seeing the police approach.

2022The necessary elements for admissibility under the tacit admission rule are “(1) that the statement incriminates the defendant such that the natural reaction of an innocent person would be to deny it, (2) that the defendant heard the statement, and (3) that the defendant had an opportunity to reply or object and instead remained silent.” Colon, 2018 IL App (1st) 160120 , ¶ 18. - 22 - No. 1-19-0158 ¶ 73 Several out-of-state jurisdictions have rejected the tacit admission rule.

2019However, "to the extent that admissibility of evidence requires the interpretation of a rule and its intended scope, our review is de novo ." People v. Colon , 2018 IL App (1st) 160120 , ¶ 12, 426 Ill.Dec. 861 , 117 N.E.3d 278 (citing People v. Romanowski , 2016 IL App (1st) 142360 , ¶ 21, 406 Ill.Dec. 731 , 61 N.E.3d 999 ). ¶ 35 Under the tacit admission rule, a defendant's silence may be introduced as a tacit or implied admission of guilt if the defendant remains silent in the face of an accusation of criminal conduct.

2019App. 3d 1005, 1013 (2003) (“the tacit-admission rule”); People v. Campbell, 332 Ill.

2018App. 3d 1005 , 1013, 277 Ill.Dec. 604 , 796 N.E.2d 690 (2003) ("the tacit-admission rule"); People v. Campbell , 332 Ill.

2022However, D.J.’s statement as reported through Diane does not rise to the level of a recantation. ¶ 35 Defendant also characterizes the evidence as a “tacit admission” and asserts by analogy that “the failure by a defendant to deny an accusation can be considered an admission.” “Under the tacit admission rule, a defendant’s silence may be introduced as a tacit or implied admission of guilt if the defendant remains silent in the face of an accusation of criminal conduct. [Citation.] When an incriminating statement is made in the presence and hearing of an accused and the statement is not denied,

2021Defendant claims that the evidence violated the tacit-admission rule, which has recently been described as follows: “Under the tacit admission rule, a defendant’s silence may be introduced as a tacit or implied admission of guilt if the defendant remains silent in the face of an accusation of criminal conduct. [Citation.] When an incriminating statement is made in the presence -4- 2021 IL App (2d) 190380-U and hearing of an accused and the statement is not denied, contradicted, or objected to, both the statement and the failure to deny it are admissible at trial as evidence of the accused’s ac

2021“When an incriminating statement is made in the presence and hearing of the accused, and the accused fails to deny, contradict, or object to the statement, both the statement and the fact that the accused failed to deny the statement are admissible [at trial] as evidence of his acquiescence in its truth.” People v. Sneed, 274 Ill.

2019People v. Sneed , 274 Ill.

2019See, e.g. , Jarrett v. State , 265 Ga. 28 , 453 S.E.2d 461 , 463 (1995) (witness in a criminal trial may not testify as to declarant's statements based on the acquiescence or silence of the accused); Ex Parte Marek , 556 So.2d 375 , 382 (Ala. 1989) ("[t]he tacit admission rule *** is hereby abolished"); Commonwealth v. Dravecz , 424 Pa. 582 , 227 A.2d 904 , 906 (1967) (tacit admission rule is untenable).

2019See, e.g. , Jarrett v. State , 265 Ga. 28 , 453 S.E.2d 461 , 463 (1995) (witness in a criminal trial may not testify as to declarant's statements based on the acquiescence or silence of the accused); Ex Parte Marek , 556 So.2d 375 , 382 (Ala. 1989) ("[t]he tacit admission rule *** is hereby abolished"); Commonwealth v. Dravecz , 424 Pa. 582 , 227 A.2d 904 , 906 (1967) (tacit admission rule is untenable).

2022We noted that “many arrested people know, even without Miranda warnings, ‘that silence is usually golden.’ ” Id. (quoting United States v. Flecha, 539 F.2d 874, 877 (2d Cir. 1976)). - 25 - No. 1-19-0158 We held that “defendant’s surroundings militate against applying the tacit admission rule to the specified statements.” Id. ¶ 39. ¶ 79 Similarly, in the present case, defendant had been arrested and given Miranda warnings.

2022See Hagenbaugh 41 No. 1-20-0072 v. Crabtree, 33 Ill. 225, 226 (1864) (when one party to a contract asserts a thing to be true concerning that contract in the presence and hearing of the other party, and the other party makes no denial, that is a tacit admission).

2022See People v. Flores, 2014 IL App (1st) 121786, ¶ 35 . ¶ 72 Under the tacit admission rule, defendant’s silence may be introduced as a tacit or implied admission of his guilt if he remained silent in the face of an incriminating statement painting or portraying him as a participant in illegal and prohibited activity.

1998In People v. Aughinbaugh, 36 Ill. 2d 320, 322-23 , 223 N.E.2d 117, 119 (1967), the supreme court addressed this doctrine — calling it the “tacit admission rule” — as follows: “While the tacit admission rule obtains in this State, and the silence of a defendant in the face of an accusation of guilt may be shown at his trial as evidence of guilt, such evidence should be received with caution and only when the conditions upon which it becomes admissible are clearly shown to exist.” Over 60 years ago, the Supreme Court of Illinois addressed the issue of a defendant’s silence in the face of accusat

1998In People v. Aughinbaugh, 36 Ill. 2d 320, 322-23 , 223 N.E.2d 117, 119 (1967), the supreme court addressed this doctrine — calling it the “tacit admission rule” — as follows: “While the tacit admission rule obtains in this State, and the silence of a defendant in the face of an accusation of guilt may be shown at his trial as evidence of guilt, such evidence should be received with caution and only when the conditions upon which it becomes admissible are clearly shown to exist.” Over 60 years ago, the Supreme Court of Illinois addressed the issue of a defendant’s silence in the face of accusat