Doyle violation in Kansas

2015A Doyle violation occurs when the government attempts to impeach a defendant’s version of events offered at trial on the basis that the defendant remained silent after being advised of his or her Miranda rights and, thus, did not offer the information at an earlier point in the criminal investigation. 426 U.S. at 617-19 ; see State v. Kemble, 291 Kan. 109, 121-23 , 238 P.3d 251 (2010).

2015A Doyle violation occurs when the government attempts to impeach a defendant’s version of events offered at trial on the basis that the defendant remained silent after being advised of his or her Miranda rights and, thus, did not offer the information at an earlier point in the criminal investigation. 426 U.S. at 617-19 ; see State v. Kemble, 291 Kan. 109, 121-23 , 238 P.3d 251 (2010).

2024King, 288 Kan. at 349 (holding Doyle violation during prosecutor's questioning of a witness cannot be raised on direct appeal absent a contemporaneous objection); State v. Applebee, No. 120,985, 2020 WL 1223408 , at *4 (Kan. App. 2020) (unpublished opinion) (applying K.S.A. 60-404 and King in dismissing unpreserved prosecutorial error, Doyle claim).

2024King, 288 Kan. at 349 (holding Doyle violation during prosecutor's questioning of a witness cannot be raised on direct appeal absent a contemporaneous objection); State v. Applebee, No. 120,985, 2020 WL 1223408 , at *4 (Kan. App. 2020) (unpublished opinion) (applying K.S.A. 60-404 and King in dismissing unpreserved prosecutorial error, Doyle claim).

2009See Sanchez, 282 Kan. 307 , Syl. ¶ 1 (“An appellate court does not review an alleged violation under Doyle . . . when the defendant fails to raise a timely objection with the trial court.”); State v. Haddock, 257 Kan. 964, 973 , 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737 , 79 P.3d 169 (2003) (“A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal.”); State v. Fisher, 222 Kan. 76, 84 , 563 P.2d 1012 (1977) (“Because the appellant failed to make timely, specific objections to the testimony he n

2009See Sanchez, 282 Kan. 307 , Syl. ¶ 1 (“An appellate court does not review an alleged violation under Doyle . . . when the defendant fails to raise a timely objection with the trial court.”); State v. Haddock, 257 Kan. 964, 973 , 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737 , 79 P.3d 169 (2003) (“A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal.”); State v. Fisher, 222 Kan. 76, 84 , 563 P.2d 1012 (1977) (“Because the appellant failed to make timely, specific objections to the testimony he n

2020A line of questioning constitutes a Doyle violation if it "center[s] on what was not said." State v. Hernandez, 284 Kan. 74, 91 , 159 P.3d 950 (2007).

2020A line of questioning constitutes a Doyle violation if it "center[s] on what was not said." State v. Hernandez, 284 Kan. 74, 91 , 159 P.3d 950 (2007).

2020If the court determines there was a Doyle error, reversal of a conviction is not automatic. 304 Kan. at 249 .

2020If the court determines there was a Doyle error, reversal of a conviction is not automatic. 304 Kan. at 249 .

2020See State v. Wilkerson, 278 Kan. 147, 157 , 91 P.3d 1181 (2004) (finding no Doyle violation where prosecutor examined a defense alibi witness who previously refused to speak to law enforcement and who had not been in custody or read Miranda warnings). 6 If the Doyle challenge concerns an evidentiary issue raised at trial—e.g., a prosecutor's line of questioning on direct or cross-examination—a defendant cannot argue the issue on appeal if defendant did not timely and specifically object to it during the trial.

2020See State v. Wilkerson, 278 Kan. 147, 157 , 91 P.3d 1181 (2004) (finding no Doyle violation where prosecutor examined a defense alibi witness who previously refused to speak to law enforcement and who had not been in custody or read Miranda warnings). 6 If the Doyle challenge concerns an evidentiary issue raised at trial—e.g., a prosecutor's line of questioning on direct or cross-examination—a defendant cannot argue the issue on appeal if defendant did not timely and specifically object to it during the trial.

2012State v. Brinkley, 256 Kan. 808, 820 , 888 P.2d 819 (1995).’ ” State v. Drayton, 285 Kan. 689, 707 , 175 P.3d 861 (2008) (quoting State v. Edwards, 264 Kan. 177, 195 , 955 P.2d 1276 [1998]).

2006As this court has previously stated: “[A] Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoiced his or her constitutional right to remain silent.” Brinkley, 256 Kan. at 820.

2015A Doyle violation occurs when the government attempts to impeach a defendant’s version of events offered at trial on the basis that the defendant remained silent after being advised of his or her Miranda rights and, thus, did not offer the information at an earlier point in the criminal investigation. 426 U.S. at 617-19 ; see State v. Kemble, 291 Kan. 109, 121-23 , 238 P.3d 251 (2010).

2015A Doyle violation occurs when the government attempts to impeach a defendant’s version of events offered at trial on the basis that the defendant remained silent after being advised of his or her Miranda rights and, thus, did not offer the information at an earlier point in the criminal investigation. 426 U.S. at 617-19 ; see State v. Kemble, 291 Kan. 109, 121-23 , 238 P.3d 251 (2010).

2012App. 2d 735, 748 , 108 P.3d 448 , rev. denied 280 Kan. 986 (2005), as support for his characterization of Block’s statement as a Doyle violation.

2012App. 2d 735, 748 , 108 P.3d 448 , rev. denied 280 Kan. 986 (2005), as support for his characterization of Block’s statement as a Doyle violation.

2009See Sanchez, 282 Kan. 307 , Syl. ¶ 1 (“An appellate court does not review an alleged violation under Doyle . . . when the defendant fails to raise a timely objection with the trial court.”); State v. Haddock, 257 Kan. 964, 973 , 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737 , 79 P.3d 169 (2003) (“A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal.”); State v. Fisher, 222 Kan. 76, 84 , 563 P.2d 1012 (1977) (“Because the appellant failed to make timely, specific objections to the testimony he n

2008We acknowledge that the State’s brief cites State v Sanchez, 282 Kan. 307, 311 , 144 P.3d 178 (2006), for the proposition that an appellate court does not review an alleged Doyle violation when defendant fails to raise a timely objectioii with the trial court.

2016See State v. Santos-Vega, 299 Kan. 11 , 321 P.3d 1 (2014) (district judge gave no admonition or curative instruction; verdict dependent on whether jury believed victim or defendant); see also Tully, 293 Kan. at 194 (district judge took no remedial action; verdict hinged on defendant’s credibility); State v. Kemble, 291 Kan. at 124-25 (outcome dependent on evaluation of defendant’s credibility; prosecutor’s improper reference to defendant’s silence addressed theory of defense).

2014See State v. Hernandez, 284 Kan. 74, 91-92 , 159 P.3d 950 (concluding Doyle violation not established when prosecutor’s question was unclear regarding whether referring to pre- or post-Miranda silence), cert. *512 denied 552 U.S. 1025 (2007); Tully, 293 Kan. at 188 (no Doyle violation when reference is to pr e-Miranda silence).

2014The Alleged Doyle Violation Marshall next argues that the State committed a Doyle violation by allegedly arguing guilt based on his postarrest silence. *846 “A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent.” State v. Edwards, 264 Kan. 177, 195 , 955 P.2d 1276 (1998).

2014The Alleged Doyle Violation Marshall next argues that the State committed a Doyle violation by allegedly arguing guilt based on his postarrest silence. *846 “A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent.” State v. Edwards, 264 Kan. 177, 195 , 955 P.2d 1276 (1998).

2024Concluding that cumulative error deprived the defendant of a fair trial, the court highlighted the aggregated errors: a Doyle violation—"complete with the detective's histrionic emphasis—and the lack of unanimity between the evidence and the charges being deliberated, which remained unexplained despite the jury's obvious confusion." (Emphasis added.) Santos-Vega, 299 Kan. at 22 .

2024Concluding that cumulative error deprived the defendant of a fair trial, the court highlighted the aggregated errors: a Doyle violation—"complete with the detective's histrionic emphasis—and the lack of unanimity between the evidence and the charges being deliberated, which remained unexplained despite the jury's obvious confusion." (Emphasis added.) Santos-Vega, 299 Kan. at 22 .

2020See Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S. Ct. 1710 , 123 L. Ed. 2d 353 (1993) (applying constitutional harmless error test to Doyle violation). 17 BURDEN OF PROOF INSTRUCTION Moore's final issue challenges the propriety of the district court's burden-of-proof jury instruction.

2020See Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S. Ct. 1710 , 123 L. Ed. 2d 353 (1993) (applying constitutional harmless error test to Doyle violation). 17 BURDEN OF PROOF INSTRUCTION Moore's final issue challenges the propriety of the district court's burden-of-proof jury instruction.

2020Fisher, 304 Kan. at 248 ; see State v. Ward, 292 Kan. 541, 569 , 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).

2020Fisher, 304 Kan. at 248 ; see State v. Ward, 292 Kan. 541, 569 , 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).

2016See Hernandez, 284 Kan. at 82 (no Doyle violation when prosecutor refers to defendant’s pre-Miranda silence); see also State v. Drayton, 285 Kan. 689, 707-08 , 175 P.3d 861 (2008) (no Doyle violation when prosecutor impeaches defendants trial testimony through use of a prior inconsistent statement made after Miranda warnings given).

2016See Hernandez, 284 Kan. at 82 (no Doyle violation when prosecutor refers to defendant’s pre-Miranda silence); see also State v. Drayton, 285 Kan. 689, 707-08 , 175 P.3d 861 (2008) (no Doyle violation when prosecutor impeaches defendants trial testimony through use of a prior inconsistent statement made after Miranda warnings given).

2009See Sanchez, 282 Kan. 307 , Syl. ¶ 1 (“An appellate court does not review an alleged violation under Doyle . . . when the defendant fails to raise a timely objection with the trial court.”); State v. Haddock, 257 Kan. 964, 973 , 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737 , 79 P.3d 169 (2003) (“A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal.”); State v. Fisher, 222 Kan. 76, 84 , 563 P.2d 1012 (1977) (“Because the appellant failed to make timely, specific objections to the testimony he n

2009See Sanchez, 282 Kan. 307 , Syl. ¶ 1 (“An appellate court does not review an alleged violation under Doyle . . . when the defendant fails to raise a timely objection with the trial court.”); State v. Haddock, 257 Kan. 964, 973 , 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737 , 79 P.3d 169 (2003) (“A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal.”); State v. Fisher, 222 Kan. 76, 84 , 563 P.2d 1012 (1977) (“Because the appellant failed to make timely, specific objections to the testimony he n

2024In State v. George, 311 Kan. 693 , 701-04, 466 P.3d 469 (2020), our Supreme Court reviewed its holding in King to address the conflict between the rule allowing appellate review of unpreserved claims of prosecutorial error and the rule precluding review of the type of Doyle violation that Fallis raises here.

2024In State v. George, 311 Kan. 693 , 701-04, 466 P.3d 469 (2020), our Supreme Court reviewed its holding in King to address the conflict between the rule allowing appellate review of unpreserved claims of prosecutorial error and the rule precluding review of the type of Doyle violation that Fallis raises here.

2020And he invoked his right to counsel only after the cat was out of the bag. [Citation omitted.]"); see also Greer v. Miller, 483 U.S. 756, 764-65 , 107 S. Ct. 3102 , 97 L. Ed. 2d 618 (1987) (holding that impeachment of a defendant with evidence that defendant invoked constitutional rights is not a Doyle violation if the court sustains the objection to the impeachment; instead, the violation is analyzed as prosecutorial misconduct).

2020And he invoked his right to counsel only after the cat was out of the bag. [Citation omitted.]"); see also Greer v. Miller, 483 U.S. 756, 764-65 , 107 S. Ct. 3102 , 97 L. Ed. 2d 618 (1987) (holding that impeachment of a defendant with evidence that defendant invoked constitutional rights is not a Doyle violation if the court sustains the objection to the impeachment; instead, the violation is analyzed as prosecutorial misconduct).

2020Fisher, 304 Kan. at 248 ; see State v. Ward, 292 Kan. 541, 569 , 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).

2020Fisher, 304 Kan. at 248 ; see State v. Ward, 292 Kan. 541, 569 , 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).