Monday, October 08, 2007

With Doyle challenges lawyer must get evidence of Miranda in the record

In Brown v. State, the PCR petitioner challenged his counsel's failure to object to certain Doyle evidence used on cross-examination (i.e., the solicitor's repeated questions on why Brown did not give a statement to police indicating that someone else committed the crime). The United States Supreme Court has held the use of post-arrest silence for impeachment purposes is allowed when no Miranda warnings are given. The Court of Appeals held there was no error in allowing the questioning:

In the case at bar, there is no evidence in the record that Brown ever received the Miranda warnings. The investigating officer testified about his investigation of the crime and his activities in speaking with eyewitnesses. However, there was no testimony recounting conversations with Brown nor did the officer indicate whether Brown received Miranda warnings upon his arrest. A signed waiver of rights form was not introduced by the solicitor, nor did Brown introduce evidence of such a form at the PCR hearing. Therefore, Brown did not meet his burden of proving the solicitor committed a Doyle violation and that trial counsel erred in failing to object. See, e.g., State v. Mitchell, 330 S.C. 189, 194, 498 S.E.2d 642, 645 (1998) (appellant has burden to provide a sufficient record for review).

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