policies behind privilege in Ohio

2008The Sixth Circuit Court of Appeals undertook a two-part analysis after which it determined that (1) admitting evidence of pre-arrest silence substantially impairs the policies behind the privilege against self-incrimination; and (2) the government's use of pre-arrest silence in its case-in-chief is not a legitimate governmental practice." Leach , supra, at ¶ 28 , citing Combs , 205 F.3d at 285 . {¶ 7} Riffle asserts three instances where testimony related to his silence violated his Fifth Amendment rights and asserts its admission constituted plain error.

2007The Ohio Supreme Court found relevant the two-part analysis utilized by the Sixth Circuit in Combs v. Coyle (C.A.6, 2000), 205 F.3d 269 , which provides "(1) admitting the evidence of pre-arrest silence substantially impairs the policies behind the privilege against self-incrimination; and (2) the government's use of pre-arrest silence in its case-in-chief is not a legitimate governmental practice." Leach , 102 Ohio St.2d at 140 . {¶ 28} In Leach , the court determined that an accused's pre-arrest, pre- Miranda , invocation of his right to counsel was inadmissible as substantive evidence of gu

2007Our analysis of Estepp's second assignment of error renders analysis of the remaining assignments of error moot. {¶ 9} Estepp's second assignment of error is as follows: {¶ 10} "THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DID NOT DECLARE A MISTRIAL OR ISSUE A CURATIVE INSTRUCTION SUA SPONTE AFTER THE PROSECUTOR ELICITED TESTIMONY REGARDING APPELLANT'S PRE-ARREST SILENCE." {¶ 11} "(1) [Admitting evidence of pre-arrest silence substantially impairs the policies behind the privilege against self-incrimination; and (2) the government's use of pre-arrest *Page 5 silence in its case-in-chief is no

2004In sum, permitting the use of a defendant's prearrest silence as substantive evidence of guilt would greatly undermine the policies behind the privilege against self-incrimination while adding virtually nothing to the reliability of the criminal process. {¶ 28} Combs v. Coyle, (6th Cir., 2000), 205 F.3d 269 , 283 . {¶ 29} Recently, the Ohio Supreme Court has ruled that "use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination." State v. Leach, 102 Ohio St.3d 135 , 2004-Ohio-2147 , 807 N.E.2d 335 , at ¶ 38. {¶ 30}

2007Notwithstanding, the court specifically noted that "[the investigating officer's] testimony that he had made an appointment to meet with [the defendant] to discuss the case but that the *Page 9 appointment was not kept is legitimate." This type of testimony qualified as evidence of the "course of investigation" under the second prong of the Combs analysis. {¶ 29} Defendant contends that State v. Hawkins , 104 Ohio St.3d 582 , 2004-Ohio-7124 , establishes that any testimony concerning an accused's pre-arrest, pre- Miranda conduct in failing to keep appointments with law enforcement violates the

2007Notwithstanding, the court specifically noted that "[the investigating officer's] testimony that he had made an appointment to meet with [the defendant] to discuss the case but that the *Page 9 appointment was not kept is legitimate." This type of testimony qualified as evidence of the "course of investigation" under the second prong of the Combs analysis. {¶ 29} Defendant contends that State v. Hawkins , 104 Ohio St.3d 582 , 2004-Ohio-7124 , establishes that any testimony concerning an accused's pre-arrest, pre- Miranda conduct in failing to keep appointments with law enforcement violates the

2003A `bell once rung, cannot be unrung.'" See State v. Easter at 238-239, quoting State v. Trickel (1976), 16 Wash.App. 18 , 30 , 553 P.2d 139 . {¶ 79} In Combs v. Coyle , 205 F.3d at 283 , the Sixth Circuit concluded the "use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination." Such a use "substantially impair[s] the policies behind the privilege," i.e., to prevent the subjection of a suspect to "self-accusation, perjury or contempt," and adds "virtually nothing to the reliability of the criminal process." Id.

2003A `bell once rung, cannot be unrung.'" See State v. Easter at 238-239, quoting State v. Trickel (1976), 16 Wash.App. 18 , 30 , 553 P.2d 139 . {¶ 79} In Combs v. Coyle , 205 F.3d at 283 , the Sixth Circuit concluded the "use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination." Such a use "substantially impair[s] the policies behind the privilege," i.e., to prevent the subjection of a suspect to "self-accusation, perjury or contempt," and adds "virtually nothing to the reliability of the criminal process." Id.