"Lawyering Up": What the Pennsylvania Supreme Court’s Latest Ruling Means for Fair Trials

 

Can a prosecutor point to the fact that a suspect retained an attorney before arrest and argue to the jury that it demonstrates guilt?

In a major decision addressing prosecutorial boundaries and constitutional fairness, the Pennsylvania Supreme Court delivered a clear, two-part answer: No, prosecutors are strictly forbidden from arguing that hiring or consulting a lawyer implies guilt. However, doing so is a trial error subject to harmless error review rather than an automatic ground for overturning a conviction.

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The Background: Turning the Right to Counsel into an Accusation

 

During an investigation into allegations of kidnapping and sexual assault, a suspect hired an attorney. With counsel present on the phone, the suspect spoke to the investigating detective and denied any wrongdoing or sexual contact with the complainant.

 

At trial, forensic evidence established that sexual contact had occurred. During closing arguments, the prosecutor drew attention to the pre-arrest phone interview, heavily emphasizing that the defendant had retained an attorney before speaking with law enforcement. The prosecutor argued to the jury that the defendant knew the seriousness of the investigation, obtained counsel to protect himself, and then chose to lie during that interview while assisted by counsel.

 

Defense counsel objected immediately and moved for a mistrial, arguing that the Commonwealth improperly used the exercise of the right to counsel to infer guilt. The trial court denied the mistrial but issued a prompt, detailed curative instruction, explicitly charging the jury that consulting an attorney is a protected right, that the law prefers suspects have legal advice when speaking to police, and that the jury was strictly forbidden from drawing any negative inference from the defendant’s consultation with an attorney. The defendant was convicted and appealed.

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The Court’s Core Rulings

 

The Supreme Court addressed two central legal issues:

 

1. It Is Constitutional Error to Comment on a Suspect's Pre-Arrest Retention of Counsel

 

The Court firmly held that a prosecutor violates a defendant's constitutional right to a fair trial when informing the fact-finder that the defendant sought or retained legal assistance prior to arrest or formal charges because:

• Seeking Legal Advice is Irrelevant to Guilt or Innocence: The decision to seek legal advice is completely irrelevant to actual guilt or innocence. Innocent and culpable individuals alike consult counsel to understand their rights, navigate legal risk, and ensure proper procedure.
• Such Arguments Tend to Prejudice the Defendant's Right to a Fair Trial: Suggesting that retaining counsel equates to "consciousness of guilt" invites jurors to convict based on improper assumptions rather than the substantive evidence presented in court.
• Such Arguments Cast the Legal Profession in a Negative Light: Implying that seeking counsel suggests wrongdoing improperly vilifies the essential role defense attorneys play in protecting constitutional rights and advising individuals under investigation.

2. The Violation Is a "Trial Error," Not a "Structural Error"

 

The defense argued that penalizing someone for seeking legal advice is a structural defect requiring automatic reversal without weighing the trial evidence or considering the actual prejudice to the defendant. The prosecution countered that this type of error is subject to harmless error review, i.e., reversal is warranted only when there is a reasonable possibility that an error might have contributed to the conviction. The Supreme Court sided with the Commonwealth on this question and concluded the error was subject to review for harmless error.

 

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The Supreme Court concluded that the error was Harmless

 

Under the harmless error standard, a constitutional error will not overturn a verdict if the appellate court is convinced beyond a reasonable doubt that the error did not contribute to the outcome. The Supreme Court concluded that the error was harmless for two main reasons:

1. The Court Gave Immediate and Effective Curative Instructions: Following the defense's objection, the trial judge intervened promptly and gave a clear directive that not only prohibited adverse inferences, but also positively affirmed the importance of obtaining counsel during police investigations. Juries are legally presumed to follow a trial court's instructions.
2. Overwhelming, Uncontradicted Evidence Supported the Verdict: The Commonwealth presented independent, objective evidence—including forensic DNA proof and surveillance video corroborating the complainant's testimony—that overwhelmingly established guilt, rendering the improper remarks comparatively insignificant.

 

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The Sacred Right to Counsel in the United States

 

The right to skilled, aggressive and competent counsel can make all of the difference in your case. The Constitution protects your right to secure the assistance of a zealous advocate without fear of a prosecutor (or anyone for that matter) suggesting that doing so implies you are guilty, acted improperly or have something to hide. This is one of the most precious rights that we as Americans have and cannot be used as a weapon against you in Court.