The right of criminal defendants to guard themselves against possible self-incrimination is one that is staunchly protected.
An effective Alabama sex crimes defense allows that the accused has the right to remain silent to police and the right to not to testify before a jury. Further, the law holds that those choices can’t be used against him.
In the case of Joey Lee Rigsby v. State of Alabama, this was the core issue, as the prosecutor in the case improperly commented on the defendant’s lack of confession or testimony to the jury in his trial. So prejudicial was this comment, the Alabama Court of Appeals, reviewing his conviction on three counts of sexual abuse of a child less than 12 from the Walker Circuit Court, reversed that conviction and remanded the case for further proceedings.
His 20-year sentence was vacated, and it will now be up to prosecutors to decide whether they want to initiate the trial process all over again.
The facts of the case are this: The defendant was close family friends of a couple who were the parents of two young boys. After an evening of visiting back in the winter of 2008, the defendant asked if he could stay the night at the couples’ home. This was not an unusual request, and the couple obliged. The defendant reportedly slept in the room shared by the two young boys, who were both under the age of 12.
The boys would later testify that the defendant, who was over the age of 16, fondled and then sodomized both of them. The boys informed their parents of what had allegedly occurred the following day, and their parents responded by calling law enforcement.
The defendant was arrested, tried and convicted.
However, upon his appeal, the defendant argued that the prosecutor in his rebuttal closing argument improperly commented on the defendant’s failure to incriminate himself. Further, the court failed to give a curative instruction to the jury regarding the prosecutor’s comment.
The comment by the prosecutor referenced the defendant’s “betrayal,” and added, “Why didn’t he just admit what he’d done and give these boys some peace?”
Defense counsel immediately objected, correctly noting that such a comment was so prejudicial as to be the basis for a mistrial, which he moved for the court to grant. The court denied the request.
The appellate court would later find that the prosecutor’s comment was a direct reference to the defendant’s failure to testify or plead guilty. The statement, the appellate court found, was an improper commentary on the defendant’s invocation of his right against self-incrimination, per the Fifth Amendment.
Further, Article I, 6 of the Alabama Constitution of 1901 holds that defendants have the right to testify on their own behalf, but also that they shall not be compelled to give evidence against themselves.
What’s more, case law (particularly Hereford v. State) has well-established that prosecutors may not comment on the defendant’s right against self-incrimination. In other words, your choice not to speak to police or testify in court cannot in and of itself must not be construed as evidence of guilt.
In the 1997 case of Ex Parte Brooks, the court ruled that comments by a prosecutor regarding a defendant’s failure to testify are highly prejudicial and harmful, and the court has a duty to guard against that harm.
When it does not, Alabama case law has held that this is grounds for reversal of a conviction.