WA: Defendant’s refusal to consent to DNA sample couldn’t be object of cross-examination to show guilt

Defendant was a suspect in a cold case based on a DNA hit. When the police came to him for a new DNA sample to confirm, he refused, so a court order was obtained. It was constitutional error to cross-examine him about his prior refusal to consent as evidence of guilt. State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013):

¶18 The Prescott court’s conclusion was based in part on its analogy to the Fifth Amendment right to silence. Id. at 1352. Both the United States and Washington Supreme Courts have held that defendants’ exercise of their Fifth Amendment right to silence may not be introduced against them at trial as substantive evidence of guilt. See, e.g., Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); State v. Burke, 163 Wn.2d 204, 221-22, 181 P.3d 1 (2008). To hold otherwise would allow courts to penalize individuals for lawfully exercising a constitutional privilege. Griffin, 380 U.S. at 614; Burke, 163 Wn.2d at 212, 221.

¶19 One reason a defendant’s silence may not be introduced at trial as evidence of guilt is because silence is ambiguous. Prescott, 581 F.2d at 1352 (citing United States v. Hale, 422 U.S. 171, 176-77, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975)). The Washington Supreme Court in Burke noted similar skepticism about the probative value of silence. 163 Wn.2d at 218-19. If a defendant’s silence was admissible, the prosecutor might argue that if the defendant had nothing to hide, he would not have kept silent. Prescott, 581 F.2d at 1352. But, even an innocent person may have many reasons for not speaking, like mistrusting antagonistic law enforcement, being under no obligation to speak, or simply knowing that anything you say can be used against you. Burke, 163 Wn.2d at 218-19. In most cases, it is impossible to conclude that refusal to speak is more consistent with guilt than with innocence. Id. at 219. As a result, such evidence can be readily misinterpreted by the jury, which renders any “curative or protective instruction of dubious value.” Prescott, 581 F.2d at 1352.

¶20 The same can be said about exercising the constitutional right to privacy. See id. If evidence of refusal to consent to a search was admissible, the prosecutor might argue that if the defendant were not trying to hide something, he would let the officer conduct the search. Id. But, individuals might not want police to enter their home, whether or not there is evidence of wrongdoing. Similarly, individuals might not want their DNA to be forever catalogued in a police database. Or, they might not want police to have access to all the personal information DNA contains. Exercising the right to refuse consent to a warrantless search may have nothing to do with hiding guilt. The jury should not be allowed to infer guilt in such ambiguous circumstances, particularly involving the exercise of a constitutional right.

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