Durant v. Commonwealth
5 Va. Law Rep. 1280, 375 S.E.2d 396, 7 Va. App. 454 (1988)
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Rule of Law:
The prosecution's use of a defendant's post-arrest, post-Miranda silence for impeachment purposes or to rebut an affirmative defense violates the Due Process Clause of the Fourteenth Amendment. Separately, a child is competent to testify if they can observe, recollect, communicate, and understand the duty to speak the truth, and a court's concern over a child's credibility is not a proper basis for finding them incompetent.
Facts:
- On the evening of May 29, 1986, Sonya Durant's husband, Leroy, directed her to perform sexual acts with her fifteen-year-old daughter.
- Durant testified that Leroy threatened to kill her if she did not comply and that he kept a gun and knife in the bedroom.
- During the incident, Leroy also touched the victim’s vagina, and afterward, both Durant and Leroy told the victim not to tell anyone.
- Six days later, a similar incident occurred at Leroy's direction where Durant again performed sexual acts with her daughter.
- The victim testified that later that same evening, Leroy had sex with her despite her mother's pleas for him not to.
- A few days later, Durant gave her daughter bus fare to leave home after the daughter expressed she did not want to stay with Leroy.
- Durant later arranged for her seven-year-old son to stay with his biological father and left her husband several weeks after her children had left.
- In July 1986, the daughter told her grandmother about the incidents, which led to an investigation and Durant's arrest.
Procedural Posture:
- Sonya Durant was tried for aggravated sexual battery in a Virginia trial court.
- At trial, Durant raised the affirmative defense of duress.
- The trial court denied Durant's motion for a mistrial, which was based on the prosecutor's comments about her post-arrest silence.
- The trial court also ruled that Durant's seven-year-old son was not competent to testify.
- A jury found Durant guilty and recommended a sentence of three years, which the court imposed.
- Durant, as appellant, appealed her conviction to the Court of Appeals of Virginia, arguing the trial court made several errors.
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Issue:
Does a prosecutor's use of a defendant's post-arrest, post-Miranda silence for impeachment or to rebut an affirmative defense violate the defendant's due process rights under the Fourteenth Amendment?
Opinions:
Majority - Hodges, J.
Yes, a prosecutor's use of a defendant's post-arrest, post-Miranda silence violates the defendant's due process rights. The court held that under the precedent of Doyle v. Ohio, it is fundamentally unfair and a deprivation of due process to use an arrested person's silence against them after they have been given Miranda warnings, which carry an implicit assurance that silence will not be penalized. The court rejected the Commonwealth's argument that the comments were permissible to rebut the defendant's affirmative defense of duress, citing Wainwright v. Greenfield, which similarly prohibited using silence to rebut an insanity defense. The Commonwealth's interest in challenging the defense could have been served by carefully framed questions that did not mention the defendant's exercise of her constitutional rights. The court also held that the trial judge abused his discretion by finding the defendant's seven-year-old son incompetent to testify, as the judge's reasoning was based on the child's credibility (a matter for the jury) rather than his competency (the ability to observe, recall, and understand the duty to tell the truth).
Analysis:
This decision strongly reinforces the rule from Doyle v. Ohio, clarifying that a defendant's post-Miranda silence is protected from prosecutorial comment, even when used to challenge an affirmative defense rather than for direct impeachment of testimony. It establishes that the fundamental unfairness of penalizing the exercise of a constitutional right outweighs the state's interest in rebutting a defendant's claims. This precedent forces prosecutors to challenge defenses like duress without referring to a defendant's choice to remain silent, thereby protecting the integrity of Miranda rights. The secondary holding on child competency also serves to delineate the roles of the judge and jury, preventing judges from excluding young witnesses based on concerns about credibility, which is the exclusive province of the fact-finder.
