True Internet Grade legal advice, well worthy of taking its place in this thread.
The idea that a judge presiding over a court in the US would instruct a jury, not just allow the prosecution to comment, mind you, but actually instruct them himself, that they may infer guilt because a defendant exercised a right protected by the 5th amendment.
The common statement that the 5th Amendment creates a "right to remain silent" is unfortunate. The better expression is that it recognizes a God-given right not to be compelled to be a witness against yourself.
In contrast, both the English Common Law and U.S. law have recognized that uncompelled silence may be sometimes used as evidence.
In the U.S., you must read "no penalty" rule of
Doyle v. Ohio together with the clear holding of
Jenkins v. Anderson;
vis that the Defendant's
pre-Miranda Warning silence may be used against the Defendant at trial and considered by the jury as evidence of guilt under certain circumstances.
So, for example, if a neighbor came on the scene of a homicide and found the defendant there, knife in hand, and near the bloody victim, his testimony that the defendant remained silence when the witness said, "271345, you killed her!!!" MIGHT be allowed into the record.
As to "circumstances" and "MIGHT," I tried to shorthand that (and did pretty well) into "circumstances where a person normally would be expected to deny guilt." After all, this is the Internet. Want more? Here's Florida's highest court in a typical pronouncement:
If a party is silent, when he ought to have denied a statement that was made in his presence and that he was aware of, a presumption of acquiescence arises. Not all statements made in the presence of a party require denial. The hearsay statement can only be admitted when it can be shown that in the context in which the statement was made it was so accusatory in nature that the defendant's silence may be inferred to have been assent to its truth. To determine whether the person's silence does constitute an admission, the circumstances and the nature of the statement must be considered to see if it would be expected that the person would protest if the statement were untrue. Several factors should be present to show that an acquiescence did in fact occur. These factors include the following:
1. The statement must have been heard by the party claimed to have acquiesced.
2. The statement must have been understood by him.
3. The subject matter of the statement is within the knowledge of the person.
4. There were no physical or emotional impediments to the person responding.
5. The personal make-up of the speaker or his relationship to the party or event are not such as to make it unreasonable to expect a denial.
6. The statement itself must be such as would, if untrue, call for a denial under the circumstances. The essential inquiry thus becomes whether a reasonable person would have denied the statements under the circumstances.
(I didn't know which state to pick for you.)
As anyone who has tried a case or been a jurior knows, the Court instructs the jury about use of ALL evidence, and would instruct them about the concept of drawing an "inference" from the silence of the defendant. This would include an instruction that they could, but are not required to, draw the inference. The defense attorney would demand such an instruction to try to prevent the jury from giving too much weight to the silence (and, as here, do all that could be done with evidence and argument to minimize it). Silence is powerful.
This instructing requires some care, because no use may be made of silence post-Miranda warnings. How juries juggle all this (read to them a mile-a-minute in some state courts) is akin to a miracle, like "forgeting" something they have already heard merely by being told that they must "disregard" it.
If anything I said or failed to say suggested to anyone that a defendant might be convicted
solely on silence, my reading is that such an outcome is unlikely given the high standard of proof required.
I never thought of analogizing Mr. Dwyer to a post-Miranda Warning Defendant. So I think it is fair to at least to consider if a normal person (the mythical "normal person") would deny the accusations under all of the circumstances.