Patrick v. Chicago et al
MEMORANDUM Opinion and Order. Signed by the Honorable Ronald A. Guzman on 3/21/2017. Mailed notice. (pk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge Ronald A. Guzmin
City of Chicago, et al.,
MEMORANDUM OPINION & ORDER
The parties are ordered to refrain from discussing Plaintiff s Fifth Amendment silence at
his criminal trial, unless the door is once again opened by Plaintiff s counsel.
The issue before the Court appears to be one of first impression: May a Plaintiff s prior
Fifth Amendment silence at his criminal trial be discussed or used in a subsequent civil trial (on
largely the same matters) to draw an adverse inference against him? This issue arose in the
context of opening statements, where Plaintiff s counsel mentioned that this case (the civil case)
would be the first time Plaintiff had an opportunity to tell his story to a jury of his peers.
Trial Tr. [Dkt. # 329-3) at 8:9-12.) Defense counsel, in turn, stated the following during his
Mr. Patrick's attorney mentioned in her opening statement that Mr. Patrick has
been waiting a long time to tell his story to the jury. She is absolutely right about
that. But it wasn't the first time he had a chance. Mr. Patrick had the chance to tell
the jury that was going to decide whether he spent the rest of his life in prison or
get the death penalty his story. He knew his life was on the line. It was the highest
of stakes in 1995. He had his own attorney. He had plenty of time to prepare his
defense. Trial rolls around. The judge tells him: You have an absolute right to tell
your story, Mr. Patrick. It's your constitutional right. He says nothing. He says
nothing about his alibi. He says nothing about what he was doing that day. He
says nothing about his confession being coerced. He says nothing about anyone
else's confession being coerced.
(ld. at 57:5-57:20.) Neither party objected to the other's opening statement. The Court raised the
issue sala sponte, and the parties were instructed to brief the issue.
Neither party, however, has found a case squarely on point. What they have found instead
two lines of competing principles pertaining to Fifth Amendment silence. On one hand, there
is the line of cases beginning with Grffin v. Califtrnla, which held that a criminal defendant's
Fifth Amendment rights are violated if the prosecutor draws an adverse inference of guilt from
that silence. 380 U.S. 609, 615 (1965); see also United States v. Jones,600 F.3d 847,856 (7th
Cir 2010) (noting that even "indirect" comments about a criminal defendant's silence can violate
the Fifth Amendment
they were 'omanifestly intended or [were] of such a character that the
jury would naturally and necessarily take it to be a comment on the failure of the accused to
testifr."). On the other hand, there is an equally strong line of precedent beginning with Baxter
Palmigiano, which held that the Fifth Amendment does not forbid adverse inferences against
civil actions when they refuse to testify in
response to probative evidence offered
against them.425 U.S. 308,318-21 (1976); see also Glob.
Ltd. v. BouMatic
LLC, 523 F. App'x 421, 426 (7th Cir. 2013) ("Silence can be probative. It depends on the
Neither line of cases squarely addresses the issue in this case.l This is indeed a civil
proceeding, but Plaintiff has not refused to testify in the face of probative evidence, and defense
Plaintiff admits as much. And the only case from Defendants that comes close to addressing the
issue, attached as a one-page transcript to Defendants'brief, is Fields v Chicago, l0-cv-1168
(N.D. Ill.). There, the judge allowed defense counsel to comment on the plaintiffls prior Fifth
Amendment silence. But the Court in Fields supplied no analysis supporting the ruling (i.e.,
whether it was constitutional or evidentiary), and (2) the judge merely permitted counsel to note
that the plaintiff previously chose not to testify. In the case at bar Defense counsel said much
more. Fields is therefore of limited value to the present issue.
counsel's comment urging an adverse inference refers to his assertion of his constitutional right
in a prior criminal proceeding concerning some of the same issues of fact.
Rqflei and Fifth Amendment Silence
The most helpful line of cases the Court could find begins with Raffel v. United States,
which recognized that the Fifth Amendment is not violated when a defendant who testifies in his
own defense is impeached with his prior silence. 217 U.S. 494, 497 (1926). The defendant in
Raffel was tried twice. Id. at 494. At the first trial, a govemment witness testified that Raffel had
previously made an inculpatory statement. Id. Raffel did not testify in response, and the trial
ended with a deadlocked jury.
Id. at 495. At the second trial, the same government witness
testified about Raffel's inculpatory statement, but Raffel changed course: he took the stand and
refuted the government's witness.
The government then revealed through cross-examination
that Raffel refused to testify at his first trial. Id.
Over defense counsel's objection, the Court found the cross-examination to be proper,
explaining that "[the] immunity from giving testimony is one which the defendant may waive by
offering himself as a witness . . . . When he takes the stand on his own behalf, he does so as any
other witness, and within the limits of the appropriate rules he may be cross-examined." Id. at
496-97. Accordingly, Raffel was "subject to cross-examination impeaching his credibility just
like any other witness." Id.
Subsequent decisions undermined Raffel, however. In Grunewald
v. United States, for
a unanimous Court overturned a federal conviction because the defendant,
testified in his own defense, was questioned about his invocation of his privilege before the
jury. 353 U.S. 391 ,424 (1957). The defendant had repeatedly insisted that he was innocent
before the grand jury and stated he was asserting his privilege solely on advice of counsel. 1d at
during trial, the prosecutor cross-examined the defendant with some of the
questions he was asked before the grand jury. Id. The defendant answered them in a manner
consistent with his innocence, and the govemment was allowed (over objection) to raise his prior
Fifth Amendment silence before the grand jury. Id. In overturning his conviction, a majority of
the Court found too attenuated the inference that the defendant's earlier silence reflected upon
the credibility of his later testimony when balanced against the prejudice of
impermissible use of the evidence by the jury. Id. at 419-421. Applying, in effect, the balancing
test Rule 403 of the Federal Rules of Evidence, and mindful of the "grave constitutional
overtones," the Court ruled that, in the circumstances of the case, the cross-examination was
prejudicial enor. Id. at 423. Four members of the Court concurred, relying squarely on
violation of theFifth Amendmentand asserting that Raffel should be overruled. Id. (Black,
can think of no special circumstances that would justify use of a constitutional
privilege to discredit or convict a person who asserts it. The value of constitutional privileges is
largely destroyed if persons can be penalized for relying on them. . . .To the extent that approval
of such a rule inRaffelv. United States,27l U.S. 494,has vitality . . . I think that Raffel should
be explicitly ovemrled.")
Four years later, in Stewart v. United States, the Court explained that Raffil did not mean
that prior silence could always be used to impeach; rather, in order for prior silence to be used as
an offensive weapon in federal prosecutions,
had to be inconsistent with the subsequent
1,5 ("[I]n no case has this Court intimated that there is such a basic
inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact
of prior silence can be used to impeach any testimony which a defendant elects to give at a later
trial."); see also United States ex rel, Soulsbury v. Greer,702 F.2d 651,655 (7th Cir. 1983)
(characterizing Stewarl as being decided on Fifth Amendment grounds).
Turning to the implications of silence in state prosecutions, the Court struck down the
"California comment rule"
in Grffin v. California,relying squarely on Fifth
grounds.380 U.S. 609, 615 (1965). There, even though the defendant did not testify, both the
trial court and prosecutor commented upon the defendant's failure to deny or explain
within his knowledge (as expressly authorized by the California Constitution).ld. at 610. The
Court rejected such commentary as an impermissible penalty for the exercise of a constitutional
right. Id. at 613-15. Thus, at least in the situation where the defendant has exercised his Fifth
Amendment rights absolutely (that is, declining to testify in his defense), the Court explained
that 'owhat the jury may infer, given no help from the court, is one thing. What it may infer when
the court solemnizes the silence of the accused into evidence against him is quite another." Id. at
Next, in United States v. Hale, the Court once again examined the problem of
prosecutorial comment on prior silence where a defendant chooses to take the stand at trial. 422
U.S. 171, 174 (1975). The court, pursuant to its supervisory powers, upheld the reversal of
conviction after a trial in which the defendant had been asked by the prosecutor why he had not
given his alibi during police interrogation. Id. Again the Court used a balancing test and
found that the circumstances closely paralleled those in Grunewald, and further noted that the
of inconsistency underlying lRaffel) is absent here." Id. at l75.Raffel was thus
relegated to a footnote, noting that since Hale did not reach any constitutional claims,
unnecessary to decide whether Raffel had survived subsequent decisions. Id. at 175 n.4.
Nonetheless, Raffel was resuscitated to a degree in Jenkins v. Anderson,44J U.S. 231
(1980), which stated broadly that Raffel "recognized that the Fifth Amendment is not violated
when a defendant who testifies in his own defense is impeached with his prior silence," but
without ovemrling the prior cases (discussed above) that seem to circumscribe Raffel's holding.
It thus appears that the Supreme Court is sending mixed signals
about the circumstances in
which a criminal defendant's prior silence can be used against him.
None of this, of course, settles the precise issue before the Court. But these cases do
highlight some relevant principles: (1) when a defendant exercises his right not to testify
absolutely, the government cannot comment upon his silence; (2) instances where silence can be
used against a defendant are justified only
if (a) inconsistency
can be inferred from prior silence
and subsequent testimony and (b) there is an element of unfaimess (i.e., the defendant should not
be permitted to use the Fifth Amendment as both a sword and a shield); and (3) the analysis
should be fact specific and carefully balance the protections of the Fifth Amendment against the
need for a
full and fair development of the facts through cross-examination.
Application to this Case
The above principles suggest that Plaintiff should not be penalized for invoking his Fifth
Amendment rights during his criminal trial. He simply chose not
to testify. His
moreover, as understood within the unique facts of this case, does not suggest that his present
decision to testifu is inconsistent or less credible. See Grunewald,353 U.S. at 425 (Black J.,
concurring) ("The value
persons can be
penalized for relying on them.").
That said, this is still a civil case, and although Plaintiff has not refused to take the stand
(an act that would permit an adverse inference), the question remains whether his counsel put his
prior silence at issue during opening argument by stating that Plaintiff has been waiting since the
day of his arrest to tell his story to a jury. This statement invited a response. And had defense
counsel simply rebutted this proposition by merely noting that Plaintiff had a prior opportunity to
testify, there would be little cause for concern. But Defense Counsel's comments went further
Mr. Patrick had the chance to tell the jury that was going to decide whether he
spent the rest of his life in prison or get the death penalty his story. He knew his
life was on the line. It was the highest of stakes in 1995. He had his own attorney.
He had plenty of time to prepare his defense. Trial rolls around. The judge tells
him: You have an absolute right to tell your story, Mr. Patrick. It's your
constitutional right. He says nothing. He says nothing about his alibi. He says
nothing about what he was doing that day. He says nothing about his confession
being coerced. He says nothing about anyone else's confession being coerced.
Plaintiff s opening comment verged on the impermissible use of the Fifth Amendment right
both a sword and a shield, but it is unclear to the Court that this result was intentional; whereas
defense counsel's response was extreme and had the potential to tum
Plaintiff s exercise of the
Fifth Amendment's protections into an offensive weapon.
For this reason,
if Plaintiff makes no further
reference to his previous inability to tell his
will be barred from any further
or any evidence referring to
Plaintiff s assertion of his right to remain silent in his criminal trial. On the other hand,
Plaintiff makes any other comment about this trial being his first opportunity to tell his story,
will be permitted to rebut the same with
evidence and argument that Plaintiffs
failure to testify in his criminal trial is a proper factor that may be used to weigh his credibility in
the case at bar.
For the reasons set forth, above, the defendants are ordered to refrain from discussing
PlaintifPs Fifth Amendment silence at his criminal trial, unless the door is once again opened by
PlaintifPs counsel either through elicited testimony or argument.
ENTERED: March 21,2017
United States District Judge
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