Child Abuse Conviction Reversed After Prosecutor Elicits Pre-Arrest Silence Testimony

Kvasnikoff v. Alaska (2014)

An Alaska appellate court has reversed a conviction for sexual abuse of a child when the prosecution improperly elicited testimony on the defendant’s pre-arrest silence and then implied this silence proved the defendant’s guilt.

In Kvansnikoff, the defendant was prosecuted for sexual abuse of a child. A police officer interviewed the child’s mother, who informed the officer that the defendant was currently out of town. The officer asked the mother to have the defendant contact him when he returned.

At trial, the prosecutor elicited testimony that the defendant was aware the officer wanted to speak with him about the alleged abuse and that the defendant chose not to immediately contact the officer. The defendant testified that he got busy and forgot to contact the officer, but that he did intend to do so. In addition to eliciting this testimony, the prosecutor made several references to the defendant’s failure to immediately contact the officer, implying it proved his guilt. On appeal, the defendant argued that this testify was erroneously admitted.

Generally, a defendant’s pre-arrest silence is inadmissible due to its low probative value and high prejudicial effect. It has a low probative value because silence is as indicative of innocence as guilt. “One can conceive of a variety of situations where an innocent suspect would not offer himself or his story to the police.”

With this low probative value, the court found the evidence of pre-arrest silence was highly prejudicial because the prosecution implied that an innocent person accused of sexually assaulting a child would have immediately contacted the officer. The court found the admission of this testimony was plain error. It held that the error reasonably could have affected the outcome of the trial, and it reversed the conviction.