Silence as Statement


(1) D, the executor of E's estate, is charged with secreting E's assets, to wit, fifty $1,000 bills. D denies the existence of this money.

At D's trial the state calls W to testify that he was present at the meeting of E's heirs on June 1 when D opened E's wall safe. W will testify that he saw D rummage around in the safe and announce, "Nothing of value--just some one-dollar bills." W will further testify that E's son, S, who was peering over D's shoulder, responded, "Hey, those aren't one-dollar bills; they're one thousand-dollar bills" and that D was silent. S is dead. May W testify to S's statement? If so, how should the court charge the jury?

(2) At trial, O is called to testify that on June 2 he arrested D for theft; on the way down to the station in the police cruiser O said to D, "So you thought you would get away with an easy 50 grand, did you? D was silent. Is O's testimony admissible? Why?

(3) Charge: first-degree murder of V. Defense: self-defense. At trial the prosecution seeks to elicit testimony on cross-examination of D that D did not come forward to report the incident or his involvement in it to the police for two weeks. Would such evidence be hearsay? Would its introduction violate the confrontation clause, the self-incrimination clause, the due process clause, or the doctrine of Griffin v. California, 380 U.S. 609 (1965)? Should such evidence be admitted even if D does not take the stand?

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