In his sixth claim of prosecutorial misconduct, P argues that the prosecutor violated his Fifth Amendment rights by eliciting testimony about his post-arrest silence. Trooper Nael testified about talking to P about a meeting to get his side of the story as a complaint had been made against him. The Trooper said that P would come to a meeting that day, but did not show up. P objected on Fifth Amendment grounds but the state wanted to enter the evidence to show that the officer made every effort to conduct a thorough and complete investigation. The Court allowed the testimony. The prosecutor referred to the testimony in closing argument: Trooper Nael did everything he could do. He even talked with P on the phone and set up an appointment. He did everything he could do to give P an opportunity to talk to him. Trooper Nael did his job. The court of appeals rejected P's argument. In a criminal trial, the use of a defendant's silence as evidence is limited by the constitutional privilege against self-incrimination and the right to due process. Silence that does not occur during a custodial interrogation or in reliance on Miranda warnings is not constitutionally protected and evidence of the same may be admitted as substantive evidence. The reference to P's failure to keep a scheduled appointment with the police investigator, for the purpose of rebutting the inference that the investigation was not thorough, did not violate P's constitutional rights.

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