In general
• Silence or an equivocal response to an assertion made by another, which would ordinarily be expected to be denied, is a tacit admission.
Hughes v. State, 546 N.E.2d 1203, 1207 (Ind. 1989)(citing Moredock v.State, 441 N.E.2d 1372, 1374 (Ind. 1982))
House v. State, 535 N.E.2d 103, 109 (Ind. 1989), reh’g denied
• Such evidence is suspect and should be received with caution.
James v. State, 481 N.E.2d 417, 421 (Ind. Ct. App. 1985)
Requirements for admission: In general
• The accused must not be in custody, the assertion must be made in the presence and hearing of the accused, the accused must have an opportunity to respond to the assertion, and the assertion must be one that would ordinarily be expected to be denied.
See James v. State, 481 N.E.2d 417, 421 (Ind. Ct. App. 1985)(citing Franklin v. State, 386 N.E.2d 668, 669-70 (Ind. 1977), reh’g denied)(“[T]he law in Indiana is settled that where a charge is made in the presence and hearing of an accused who is not in custody, his silence or failure to contradict or explain the statement may be shown as being in the nature of an admission as to the truth of the statements; this is so provided circumstances are such as to afford him an opportunity to speak and such would naturally call for some action or reply from persons similarly situated.”)
See also Robinson v. State, 365 N.E.2d 1218, 1223 (Ind. 1977), cert. denied, 434 U.S. 973 (1977)(citations omitted)(“Silence or an equivocal response to an assertion of fact, which, if true, a reasonable man would be expected to deny, is admissible as evidence tending to show the truth of the assertion if the person is not in custody when the assertion is made and the person has an opportunity to speak.”)
See also Rider v. State, 570 N.E.2d 1286, 1291 (Ind. Ct. App. 1991), reh’g denied, trans. denied(citing Gayer v. State, 210 N.E.2d 852, 855 (Ind. 1965), reh’g denied)(“When a statement affecting the rights and interests of a defendant are made in his presence under circumstances affording him an opportunity to speak, his silence may be taken as an affirmation of the statement made.”)
See also Lukas v. State, 330 N.E.2d 767, 768 (Ind. Ct. App. 1975)(citing Robinson v. State, 309 N.E.2d 833, 841 (Ind. Ct. App. 1974), reh’g denied)(“Safeguards imposed by the courts upon the potentially dangerous tacit or adoptive admission rule include a showing that the charge was heard and understood and that the prevailing circumstances are such that the accused would naturally be expected to deny the charge.”)
• Additionally, substantial assurances are required that acquiescence to the truth of the statement did in fact occur.
James v. State, 481 N.E.2d 417, 421-22 (Ind. Ct. App. 1985)(citing Robinson v. State, 365 N.E.2d 1218, 1223 (Ind. 1977), cert. denied, 434 U.S. 973 (1977))
• The assertion and the words or conduct are admissible if the reaction is not a clear denial.
House v. State, 535 N.E.2d 103, 109-10 (Ind. 1989), reh’g denied(citing Moredock v.State, 441 N.E.2d 1372, 1374 (Ind. 1982))
Requirements for admission: The accused must not be in custody
• In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.
Miranda v. Arizona, 384 U.S. 436, 468 n. 37 (1966), reh’g denied(emphasis added)
• For information about the impermissibility of commenting at trial on a defendant’s silence, please review Post-Miranda Warnings Silence.
• For information about custodial interrogation, please review When Required.
• Generally, when one is charged with an offense or has an accusation made against him, and fails to contradict or explain the charge, the equivocal response to the charge or accusation allows both to be admitted into evidence as a tacit or adoptive admission. Indiana, however, has long recognized an exception to this general rule which provides that a charge or accusation made while the accused is in police custody does not call for a reply or a response and the accusation and failure to deny or explain do not constitute an admission.
Lukas v. State, 330 N.E.2d 767, 768 (Ind. Ct. App. 1975)(citations omitted)
Requirements for admission: The assertion must be made in the presence and hearing of the accused
• It must . . . be clear that the defendant heard all that was said.
James v. State, 481 N.E.2d 417, 421 (Ind. Ct. App. 1985)(citing Diamond v. State, 144 N.E. 466, 469 (Ind. 1924), stay denied)
Examples from case law
• A tacit admission may be made when the accused hears the accusation and remains silent, adds to the statement without denying it, laughs or grins, strikes the person making the accusation, or makes an equivocal response such as “Shut up.”
See Moredock v. State, 441 N.E.2d 1372, 1374 (Ind. 1982)(remained silent)
See Smith v. State, 400 N.E.2d 1137, 1142 (Ind. Ct. App. 1980)(added to the statement without denying it)
See Franklin v. State, 386 N.E.2d 668, 669-70 (Ind. 1979), reh’g denied(laughed)
See Wickliffe v. State, 424 N.E.2d 1007, 1009 (Ind. 1981)(grinned)
See Smith v. State, 372 N.E.2d 511, 515 (Ind. Ct. App. 1978), reh’g denied(struck the person who made the accusation)
See Robinson v. State, 317 N.E.2d 850, 852 (Ind. 1974), cert. denied, 434 U.S. 973 (1977)(replied “Shut up”)