New opinion — cross-examining defendant about post-arrest silence violated Fifth Amendment

A defendant charged with dealing cocaine testified in his own defense and offered innocent explanations for various incriminating facts. During cross-examination, the prosecutor asked why he had not come forward earlier with his exculpatory explanations. The district court overruled the defendant’s Fifth Amendment objection, but today CA3 reversed and ordered a new trial. The court deemed the prosecutor’s questions “textbook examples of a Fifth Amendment violation” and “obvious error.” The opinion also colorfully rejected various government arguments on appeal as “actually border[ing] on frivolous,” “badly strained,” and “frankly painful to watch.” Yikes.

The case is US v. Shannon. Opinion by Jordan–a former AUSA himself and one of CA3’s more conservative judges–joined by Rendell and Chagares. Arguing counsel were Paul Boas for the defendant and Donovan Cocas for the government.