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In Massachusetts, a criminal suspect’s silence or lack of denial cannot be used as evidence of his guilt. Generally, this rule applies after the defendant has been arrested or after he has been warned of his Miranda rights.

Regarding a defendant’s post-arrest silence, the Supreme Judicial Court (SJC) has written:

The postarrest silence of a defendant, such as a failure to deny an accusation, may not be used substantively to prove his guilt. The right of a defendant to remain silent in such a situation was established as a principle of the common law in this Commonwealth long before it became a matter of constitutional right. See Commonwealth v. McDermott, 123 Mass. 440, 441 (1877); Commonwealth v. Kenney, 12 Met. 235, 238 (1847); McCormick, Evidence Section 161, at 353-354 (2d ed. 1972). Today, of course, because of constitutional considerations, guilt cannot properly be inferred from silence in the course of police interrogation of a defendant under arrest. See Commonwealth v. Haas, 373 Mass. 545, 559 (1977); Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966).

Commonwealth v. Nickerson, 386 Mass 54, 59 n. 5

Similarly, guilt may not be inferred due to a defendant’s silence after receiving a Miranda warning. Again, quoting the SJC:

โ€œ[The] explicit reference to the defendantโ€™s silence after receiving Miranda warnings violates his rights under both the United States and Massachusetts.  Commonwealth v. Edardo, 426 Mass. 48, 52 (1995).  See also Doyle v. Ohio, 426 U.S. 610, 616-618 (1976). As the Supreme Court noted in Doyle v. Ohio, supra at 617-618, “Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. . . . [I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”

Commonwealth v. Edardo, 426 Mass. 48, 52 (1995)

If a defendant believes that the police or the prosecution may attempt to use his silence as evidence of guilt, he or his attorney should file either a motion in limine or a motion to suppress (depending on the particular court) seeking to have such evidence or testimony prohibited from trial.