MOTIONS IN LIMINE:Other Creative Motions
“The defendant has a Constitutional right to remain silent and to not discuss his alibi or defense with the prosecutor or the police” (People v. Lindsey (1998) 205 Cal.App.3d 112 at 117). The defendant also has a “judicially-bestowed right to withhold any advance notice of the alibi defense” (Lindsey, Id., at 117, citing Reynolds v. Superior Court (1974) 12 Cal.3d 834). As stated by the Lindsey court, supra, at 117:
“These rights would be stripped of much of their meaning and effect if the prosecutor were permitted to use their exercise against the defendant at trial. The prosecutor’s use of Lindsey’s pretrial silence through his counsel concerning the alibi unfairly infringed his exercise of the right not to speak to the prosecutor or the police and thus was a violation of due process.”
The Lindsey court, supra, at 117 analogized to People v. Galloway (1979) 100 Cal.App.3d 551, in which the defendant testified and presented an alibi defense. The prosecutor cross-examined the defendant about his failure to mention the alibi previously, and argued such a failure in closing argument. The court held the cross-examination and argument violated Doyle v. Ohio (1976) 426 U.S. 610, 619, which held impeachment of a defendant’s post-arrest silence is a violation of due process. See Galloway, supra, 100 Cal.App.3d at 556-559. Additionally, if the prosecutor commented on defense counsel not revealing the alibi, it is an “improper disparagement of counsel” and is prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836. The “Galloway-like error was of “Constitutional dimension” (People v. Galloway, supra, 100 Cal.App.3d at 559). Therefore, any judgment would be reversed (unless the error is considered harmless beyond a reasonable doubt).
The court reasoned that the prosecutor’s argument to the jury is unfair because the unstated premise which may be plausible to non-lawyers is that the prosecutor simply would drop all charges because the defense informed the prosecution of the alibi defense. Alternatively, the comments improperly implied defense counsel did not believe the alibi or had participated in its fabrication. See Lindsey, supra, at 117.
