Thursday, April 21, 2016

Plain Error Doyle Reversal

In US v. Victor Lopez, No. 14-4610, the Third Circuit vacates Lopez’s conviction due to a Doyle violation: the prosecution’s repeated references at trial to the defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976) prohibits the prosecution from impeaching a defendant with post-Miranda silence. The opinion is the latest in a string of Doyle violations found by the Third Circuit (United States v. Shannon, 766 F.3d 346 (3d Cir. 2014); Gov’t of Virgin Islands v. Davis, 561 F.3d 159 (3d Cir. 2009); Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998)). It is significant principally because trial counsel failed to object, therefore the appeal was on plain-error review. This is the first Third Circuit precedent for unpreserved Doyle error.

Mr. Lopez was tried in the District of New Jersey on a single felon-in-possession count under 18 U.S.C. 922(g). The trial was a credibility contest between Mr. Lopez and the two arresting officers. The officers testified that they stopped and frisked Mr. Lopez and a second man. The other man fled and has not been identified. The officers testified that Mr. Lopez had a gun in his pocket, and they arrested him on that basis. Mr. Lopez testified that he did not have a gun, and that the officers asked him to identify the other man and then framed him for the gun, which the other man must have left at the scene. As the Third Circuit held, “The jurors were faced with the decision of whether to believe the officers’ testimony that they found a gun in Lopez’s pocket or to believe Lopez’s testimony that the police framed him.”

On cross examination, the prosecutor repeatedly asked Mr. Lopez whether, before his trial testimony, he had given this exculpatory account. E.g.: “At any point, from the next day until just before this trial, did you tell anybody, ‘I was framed by police’?” In closing argument, the prosecutor made seven statements that violate the Doyle rule by inviting the inference that Lopez’s prior silence impeaches the credibility of his trial testimony.

The jury posed several factual questions. The court notes: “It appears that the jurors struggled with their assessment of the credibility of the witnesses, sending six questions to the district court during deliberations.”

The Third Circuit (Vanaskie, J., for himself, McKee, and Jordan) holds that all of the prosecution's questions and statements at issue violated Doyle, even those that regarded Lopez’s failure to file a police misconduct report. In a footnote, the court reasona that those questions also raise the impermissible inference that a defendant’s assertion of his right to silence undermines his credibility.

On plain error review, the appellant must make a prejudice showing of a reasonable probability that the error affected the outcome. The Third Circuit finds prejudice for three reasons: (1) “the case hinged entirely on the relative credibility of Lopez and the officers, with no corroborating evidence for either side’s account”; (2) “the Doyle violation was blatant”; (3) “the government’s repeated emphasis of the error in closing argument exacerbated the prejudice from the violation.”

In a footnote, the court describes the prosecution’s misconduct as “particularly egregious” given the previous Doyle precedent in the circuit. In the next footnote, the court thanks the appellate AUSA for candor. At oral argument, he conceded the Doyle error (although not prejudice), and promised to implement improved training to prevent such errors in the future. 

Thanks to Maria Pulzetti, EDPA (who litigated Lopez), for her assistance with this post.

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