Impeachment of defendant who talks is not an impermissible comment on silence.

State v. Jeremy Fischer, 2019 VT 39 [filed 5/24/2019]

REIBER, C.J. Following a jury trial, defendant appeals his conviction of sexual assault of a minor in violation of 13 V.S.A. § 3252(c). Defendant argues the trial court violated his due process rights by allowing the State to impermissibly comment on his silence. We affirm.

Here defendant did not assert his right to silence. He spoke with Detective Tallmadge.. Under the facts of this case, commenting on defendant’s omissions does not raise the concerns of fundamental fairness and due process present in Doyle. The prosecution was free to impeach defendant based on what he said and failed to say.

Defendant argues that Ladue allows the State to comment on the omissions in defendant’s statements only when the statements made to the police are inconsistent with defendant’s testimony at trial. 2017 VT 20, ¶¶ 21-25. However, even accepting defendant’s view of Ladue, defendant offered one explanation of the events to Detective Tallmadge. Then, defendant offered a different explanation at trial. 

The fact that defendant offered two independent explanations at two distinct times raises the question of defendant’s credibility—a question that was fairly brought to the jury’s attention.