The famed historian, William Durant, wrote, “One of the lessons of history is that nothing is often a good thing to do and always a clever thing to say.” That axiom, however, is not true in the context of New York’s Fifth Amendment right-to-remain-silent jurisprudence.
In People v. Vining,1 the Court of Appeals held that it was proper for the trial court to admit into evidence a recorded phone call between an incarcerated defendant and his ex-girlfriend as an adoptive admission2 where the defendant did not directly deny allegations of criminality, but instead responded evasively. The distilled holding is that private parties do not acquire a constitutional right to be silent in the face of an accusation just because law enforcement can overhear what they are saying. Vining broadly imposes an affirmative duty on individuals to speak when confronted with an accusation.
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