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Last Thursday, March 29, the Florida Supreme Court reversed Raymond Marston’s convictions of sexual battery, aggravated battery, kidnapping and robbery, ruling that Hillsborough County Assistant State Attorney Rita Peters repeatedly made remarks that “demeaned” the defendant’s right to remain silent at trial.

Defendants have a constitutional right not to speak in their own defense at trial. When a prosecutor remarks about a defendant’s decision not to testify before a jury, he risks infringing on that right. For example, last year we wrote about a Texas case where the federal Fifth Circuit Court of Appeals threw out a death penalty conviction upon finding that the prosecutor in the case had pointed to the defendant’s failure to testify at trial as evidence of his guilt.

Florida’s case law strongly protects the right to remain silent. For instance, State v. Marshall (1985) found that “Any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to testify is error and is strongly discouraged.” (pg. 153). In other words, the very act of drawing a jury’s attention to the defendant’s right not to testify may undermine that right. Unlike in the Texas case, where the prosecutor used the defendant’s silence as evidence of his guilt, in Marston it was the prosecutor’s emphasis on the right itself that presented a problem.

The Florida Supreme Court found that the prosecutor in Marston acted improperly when she “commented continuously on his right to remain silent during voir dire,” and “hammer[ed] the point home,” by saying Marston could:

  • “remain silent” and “keep his mouth shut this entire time,”
  • “sit there and play dominoes the whole time,”
  • “sit there and not say a word,”
  • “read magazines,” and
  • “play on Facebook”

Peters added that Marston could do all these things and she could never put him on the stand.

The Court also found the comments violated Florida Rule of Criminal Procedure 3.250, which prohibits the prosecutor from commenting on the defendant’s failure to testify, saying that the “nature of the comments demeaned the right that is constitutionally protected by both the state and federal constitutions.”

The Court ruled that even though the evidence against Marston was strong, Peters’ impermissible comments could not be dismissed as harmless error, and granted Marston a new trial.

Read the opinion in full here.

The Hillsborough State Attorney’s Office says it will retry the case. The father of the victim told the Tampa Bay Times, “I’m very angry that we’re going to rehash this and open up old wounds based on a side comment that shouldn’t have been made.”


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