Law Offices of Robin Bresky Obtains Unanimous Decision as Co-counsel in Supreme Court of Florida Appeal Addressing Use of Pre-Arrest, Pre-Miranda Silence Against Accused
State v. Donna Horwitz, SC15-348 (Fla., May 5, 2016).*
On May 5, 2016, the Supreme Court of Florida issued a unanimous decision in favor of our client in an appeal that is likely to have substantial consequences for police-citizen encounters and criminal defendants across the state. Board-certified appellate specialist Jonathan Mann of The Law Offices of Robin Bresky served 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. During the trial, law enforcement witnesses repeatedly testified that Ms. Horwitz remained silent between the time of the murder and her formal arrest. The State emphasized that silence in its closing argument as evidence of an alleged consciousness of guilt.
Ms. Horwitz successfully argued in the Fourth District Court of Appeal that, while evidence of pre-arrest, pre-Miranda silence is admissible under Florida law to impeach a defendant’s trial testimony, her pre-arrest, pre-Miranda silence was inadmissible in this case because she did not testify at trial. She asserted that her conviction should be overturned because the trial judge erred in allowing the State to present and comment on 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 the conviction of Ms. Horwitz, holding that the trial court committed harmful error in admitting evidence of her pre-arrest, pre-Miranda silence and concluding that the State could not use it as substantive evidence of guilt, but certified the following issue as one of great public importance for review by the Supreme Court of Florida: “Whether, under Florida law, the State is precluded from introducing evidence of a defendant’s pre-arrest, pre-Miranda silence where the defendant does not testify at trial?” State v. Horwitz, 40 Fla. L. Weekly D 474 (Fla. 4th DCA, Feb. 18, 2015).
In the Supreme Court of Florida, 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 pre-arrest, pre-Miranda silence does not violate the Fifth Amendment to the United States Constitution because the privilege against self-incrimination generally is not self-executing; a suspect must expressly invoke the privilege in response to an officer’s questions, and it is not sufficient to simply stand mute. The State also argued that the Florida Constitution does not prohibit the use of such silence and that its use as evidence of guilt should not be categorically barred under Florida’s evidentiary rules because its probative value is not always substantially outweighed by prejudicial effect.
On behalf of Ms. Horwitz, we argued that the use of the pre-arrest, pre-Miranda silence against the defendant who did 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. We also argued that reversal of her conviction was required under Florida evidentiary law because her pre-arrest, pre-Miranda silence in this case lacked any probative value.
The Supreme Court of Florida agreed with our arguments. The court held that “ the State’s use of a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt violates the Florida constitutional right against self-incrimination, and  the State is further precluded under Florida’s evidentiary law from using that silence to argue a defendant’s consciousness of guilt.” The Court further agreed with the Fourth DCA that the error was not harmless. All of the justices concurred in the result. The Court approved the Fourth DCA’s decision reversing the conviction and ordering a new trial.
We are proud to have played a role in obtaining justice for our client and clarifying the constitutional protections provided to Floridians.
* The decision is not final until determination of a timely-filed motion for rehearing, if any.