These two legal principles lead us to conclude that the State may introduce evidence that might otherwise be a violation of the defendant’s Fifth Amendment right against self-incrimination if the State’s evidence is a fair response to evidence elicited by the defendant. See Hall v. Vasbinder, 563 F.3d 222, 234 (6th Cir. 2009) (concluding that testimony elicited by prosecutor about defendant’s silence at a probate court hearing at which his daughter was placed in foster care did not violate Fifth Amendment because defense counsel opened the door by first asking defendant’s daughter on cross-examination whether her father testified at the hearing). To open the door, the defendant’s evidence must use his or her pre-trial silence as probative of the defendant’s innocence and leave the trier of fact with a false or misleading impression. See Bryant, 802 N.E.2d at 500. This rule protects a defendant’s Fifth Amendment privilege and provides “both the defendant and the prosecutor to meet fairly the evidence and arguments of one another.” Robinson, 485 U.S. at 33. Of course, the State may not introduce such evidence on its own initiative without running afoul of the Fifth Amendment. [Footnote omitted.]
Here, on direct examination, the prosecutor asked Detective Lawrence whether Ludack said that he lived with T.E. in June 2008 and took care of her children. That appears to be the entire substance of the interview, and the prosecutor asked no other questions. On cross-examination, defense counsel asked Detective Lawrence whether, during the interview, Ludack had admitted the allegations that he molested M.E. Defense counsel used the question to elicit testimony to imply that since Ludack answered some questions during the interview but did not admit to the allegations, he must be innocent. Thus, Ludack attempted to capitalize on the fact that he chose to remain silent by terminating the interview with Detective Lawrence. In addition, defense counsel’s question and the reply created a false impression that Detective Lawrence and Ludack actually talked about whether Ludack committed the alleged acts. We conclude that Ludack opened the door for the prosecutor to question Detective Lawrence as to the scope of the interview. The prosecutor’s follow-up questions attempted to clarify that Ludack neither admitted nor denied the allegations. The prosecutor’s question was a fair response to defense counsel’s tactic. It is unsurprising that Detective Lawrence explained why Ludack neither admitted nor denied the allegation, although there is no indication that the prosecutor was actually attempting to elicit testimony that Ludack “asked to stop speaking.” Tr. at 125. We also observe that the prosecutor did not comment upon Ludack’s request to stop speaking after that. In light of defense counsel’s question, we find no violation of Ludack’s Fifth Amendment right against self-incrimination. [Footnote omitted.] Therefore, no error occurred, let alone fundamental error.
VAIDIK, J., and BRADFORD, J., concur.