# Attilio Agnellino v. State of New Jersey and Howard Yeager, Principal Keeper, New Jersey State Prison > Court of Appeals for the Third Circuit · February 13, 1974 · 493 F.2d 714 URL: https://www.frixlaw.com/law-library/cases/9460416 ## Case - **Full name:** Attilio AGNELLINO, Appellant, v. STATE OF NEW JERSEY and Howard Yeager, Principal Keeper, New Jersey State Prison, Appellees - **Court:** Court of Appeals for the Third Circuit - **Decided:** February 13, 1974 - **Citations:** 493 F.2d 714; 1974 U.S. App. LEXIS 10078 - **Precedential status:** Published - **Opinion:** Concurrence by Seitz - **Judges:** III, Seitz, Hunter, Weis - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460416 ## How later opinions describe it (automated extraction) - stating that the standard for probable cause “clearly is something less than ‘certainty’ or ‘evidence of guilt beyond a reasonable doubt’ ” ## Opinion text SEITZ, Chief Judge (concurring). I concur in Part II of Judge Hunter’s opinion and in the result reached by him in Part I. I disagree, however, with his analysis in Part I. Were we faced here with a prosecutorial request that the jury infer guilt from the defendant’s silence at the time of his arrest, after Miranda warnings were given, I could not agree with Judge Hunter that such comment was proper, even if only for impeachment purposes. The Burt case, heavily relied on by Judge Hunter involved silence that was found to be essentially conduct, although, as with any evidence of conduct, its value as evidence lay in its implicit testimonial content. The defendant in Burt was charged with murder. He testified at trial that the shooting from which the charge arose had been accidental. This Court found proper the prosecutor’s comment that Burt’s trial testimony was inconsistent with his failure to notify anyone or to seek aid for the victim. The fact that among the people Burt failed to notify was a police officer, arresting Burt on another, unrelated charge, was held not to make the prosecutor’s remarks comment on Burt’s silence “in the face of accusation” — Burt was not implicated in the shooting at the time of his silence, and his “non-action” rather than “non-speech” was the subject of comment. United States ex rel. Burt v. New Jersey, 475 F.2d 234, 236-237 (3d Cir. 1973). Under Judge Hunter’s view of the facts in this case, Agnellino's silence would be markedly different from Burt’s. Agnellino’s silence under Judge Hunter’s conception would not be “non-action”, id. at 236 , that was inconsistent with trial testimony and that occurred at a time when the defendant did not stand accused of the crime with which we are concerned. Instead, Agnellino’s silence would toe the product of a conscious choice not to divulge information relevant to the crime with which we are concerned at the very time Agnellino was arrested and accused with commission of that crime. I do not believe that prosecutorial comment on such silence would be proper. The Fifth and Fourteenth Amendments protect the individual from being compelled to bear witness against himself by a series of related prohibitions: if the defendant speaks as the result of actual coercion, his speech is excluded from evidence for all purposes; if he chooses not to speak, the prosecution cannot from that urge the jury to draw an inference of guilt; if he speaks without coercion but without knowledge of his rights, his speech is excluded from use as direct, but not impeachment, evidence. The last of these three protec *729 tions, embodied in the Miranda rule, differs in type from the first two. The Miranda requirement of warnings is a prophylactic measure. It prohibits direct evidence use of statements made voluntarily by the defendant who was not advised of his rights of silence and of counsel, recognizing that such statements may be as reliable as direct testimony. The broad sweep of the Miranda rule guards against the possibility that an innocent defendant, in the face of police accusation and unaware of his rights, might make an honest and voluntary statement that is, nonetheless, subject to inculpatory construction. Cognizant, however, that the Miranda rule brings within its exclusionary sweep voluntary statements by guilty defendants, who may even be fully aware of their legal rights though police have not given the required warnings, courts have permitted impeachment use of voluntary statements made without Miranda warnings as an essential deterrent to intentional dishonesty by defendants. Such is the holding in Harris. The protection against use of silence to infer guilt, like the protection against use of coerced statements, has not given rise to any prophylactic rule such as Miranda lays down. To say that a defendant’s silence in the face of accusation can be used to impeach his testimony would have the same effect as allowing impeachment use of coerced confessions. The law has recognized that no testimonial statement may be drawn from silence in the face of police accusation, nor from a statement made under duress, that is sufficiently reliable to be admitted for any purpose in a criminal trial. There are, of course, peculiar circumstances such as found in Burt where we are concerned not with a defendant’s failure to offer an exculpatory statement to rebut accusation but with his failure to act, to summon help in that case. But, as this Court approvingly noted and quoted in United States ex rel. Smith v. Brierly, 384 F.2d 992, 994 (3d Cir. 1967), “[ljacking such circumstances, to draw a derogatory inference from mere silence is to compel respondent to testify; and the customary formula of warning should be changed, and the respondent should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’ ” McCarthy v. United States, 25 F.2d 298, 299 (6th Cir. 1928). I believe the admonition is as true regarding impeachment as where direct use is involved. I do not, however, believe that “silence” by this defendant was the subject of the prosecutor’s challenged remarks. The defendant, after being given the required warnings, answered all of the questions put to him by the police. According to the testimony of one police officer, defendant at the time of his arrest stated that he had gotten “a good buy” on the carpeting, that he paid about $150.00 for each air conditioner, and that in light of. the price paid he would not be surprised if the air conditioners were stolen. At trial, the defendant testified that he had picked up the air conditioners for his business from one Bill Gordon, who did business at a specified location under the name “Metropolitan Air Conditioning”, and that he paid $175.00 for each. His trial testimony essentially attempts to represent his purchase of these items as a “course of business” transaction. This picture differs markedly from the impression conveyed by the statements the police officer testified that defendant made the night of his arrest both in choice of words and in the details offered. The prosecutor’s not unambiguous remarks appear to me to comment upon the differences in the statements made by defendant at trial and those made at the time of the arrest. Comment upon those differences, rather than upon defendant’s silence, is permissible where credibility is in issue. For this reason, I concur in the result reached by Judge Hunter in Part I as well as in Part II of his opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460416. Public record. Not legal advice.