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State v. McCallie, 2016 UT App 4 (Jan. 7, 2016)

Jan 7, 2016

 The Utah Court of Appeals affirmed the district court’s denial of a mistrial, holding that even though the prosecution committed constitutional error by commenting on the defendant’s silence, that error was harmless. In holding that there was error, the Court rejected the State’s argument that the prosecutor did not commit constitutional error because he merely commented on the defendant’s statements that he did not know what had happened, not the defendant’s actual silence. Applying two United States Supreme Court cases, the Court held that it was appropriate to analyze the prosecutor’s comments as if the defendant had remained silent because the defendant’s statements were “post-arrest statements about [his] involvement in the interrogation itself” as compared to statements about involvement in the crime. Under this analysis the prosecutor committed error by commenting on the defendant’s “silence.”