Law Offices of Robin Bresky Co-Counsels for Respondent in Supreme Court of Florida Appeal Addressing Use of Pre-Arrest, Pre-Miranda Silence Against Accused

State v. Donna Horwitz, SC15-348

The Supreme Court of Florida is currently considering an appeal that could have substantial consequences for criminal defendants across the state. Jonathan Mann of the Law Offices of Robin Bresky is serving as co-counsel for the Respondent, Donna Horwitz.

Ms. Horwitz was convicted of first-degree murder with a firearm and sentenced to life in prison for the 2011 killing of her ex-husband. Ms. Horwitz successfully argued on appeal that her conviction should be overturned because she did not testify at trial, and the trial judge erred in allowing evidence that she was silent before she was arrested and before she was advised of her constitutional right to remain silent. The Fourth DCA overturned her conviction but certified the issue as one of great public importance for review by the Supreme Court of Florida. State v. Horwitz, 4D13-336 (Fla. 4th DCA Feb. 18, 2015).

In the Supreme Court, the State argued that the Fourth DCA was incorrect in holding that the trial court erred in allowing the use of Ms. Horwitz’s pre-arrest, pre-Miranda silence against her in her trial. The State relied upon the decision of the United States Supreme Court in Salinas v. Texas, 133 S.Ct. 2174 (2013) that the admission of such silence does not violate the United States Constitution. The State also argued that the Florida Constitution does not prohibit the use of such silence and that the use of pre-arrest, pre-Miranda silence should not be categorically barred under Florida’s evidentiary rules because its probative value is not always substantially outweighed by prejudicial effect.

Ms. Horwitz argued in opposition that the use of pre-arrest, pre-Miranda silence against a defendant who does not testify at trial violated the Florida Constitution, which provides Florida defendants greater protections against self-incrimination than those recognized under the United States Constitution. Ms. Horwitz argued that reversal of her conviction was also required under Florida evidentiary law because her pre-arrest, pre-Miranda silence in this case was devoid of any probative value under the circumstances.

The Supreme Court of Florida heard oral argument in the matter on November 3, 2015. The Court has yet to issue a decision in the case.