ME: Comment that def’s refusal to submit to DNA testing was consciousness of guilt was plain error

State’s comment that defendant’s refusal to submit to DNA testing was consciousness of guilt was plain error. State v. Glover, 2014 ME 49, 2014 Me. LEXIS 51 (March 27, 2014):

[¶12] A defendant’s refusal to consent to a search may, in some circumstances, tend to prove a defendant’s consciousness of guilt. However, its minimal probative value will almost always be substantially outweighed by the danger of unfair prejudice, rendering it inadmissible pursuant to M.R. Evid. 403. This is especially true with respect to a lawful refusal to provide a DNA sample that has the potential to give the state unrestricted access to the subject’s entire genetic make-up. In addition, as is true in the context of an accused’s assertion of the Fifth Amendment right to remain silent, “[t]he danger is that the jury is likely to assign much more weight to the defendant’s [assertion of the right] than is warranted. And permitting the defendant to explain the reasons for [asserting the right] is unlikely to overcome the strong negative inference that the jury is likely to draw ….” Hale, 422 U.S. at 180.

[¶13] Here, the constitutional nature of the right at stake underscores the unfairly prejudicial nature of refusal evidence. The questionable probative value of such evidence does not justify compromising the integrity of the constitutional protection. “The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them.” Grunewald v. United States, 353 U.S. 391, 425 (1957) (Black, J., concurring). “It would seem … illogical to extend protections against unreasonable searches and seizures, including the obtaining of a warrant prior to implementing a search, and to also recognize an individual’s right to refuse a warrantless search, yet allow testimony regarding such an assertion of that right at trial in a manner suggesting that it is indicative of one’s guilt.” Commonwealth v. Welch, 585 A.2d 517, 519 (Pa. Super. Ct. 1991). Although the Fourth Amendment itself may not prohibit admission of evidence of a defendant’s refusal to consent to a search for the purpose of proving consciousness of guilt, we conclude that the unfair prejudice that results from the use of evidence of the refusal for this purpose requires its exclusion, and that this error is plain.

In my jurisdiction, the phrase “plain error” is always followed by “does not exist.” It could, however, make for an IAC claim.