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¶25 As an evidentiary matter, a defendant’s silence in the face of a statement adverse to his interests may be admissible as a tacit admission, provided the defendant could clearly hear the statement and the circumstances “naturally call for a reply if [he] did not intend to admit such facts.” ¶ 7 (2012) (citation omitted).

¶32 Strickland did not show the prejudice necessary to establish fundamental error because given the weight of the evidence against Strickland, “the error did not contribute to or affect the verdict.” ¶ 16 (2012) (citation omitted) (considering prejudice for violating defendant’s invocation of rights under harmless error review); see also Escalante, 245 Ariz. at 144 ¶ 31 (considering prejudice standard for fundamental error review).

Similarly, “the admission of post-custody, pre-Miranda silence and prosecutorial comment on such silence violate a defendant’s constitutional right to remain silent.” ¶ 20 (2012).

–37, ¶¶ 11–15 (2012) (explaining the right to pretrial silence does not attach in a pre-custody encounter, even where police questioning is involved).

The use of a defendant's silence as evidence of guilt violates the right against self-incrimination, -37, ¶ 15 (2012), and testimony a defendant invoked his right to remain silent may violate due process, Doyle v. Ohio, 426 U.S. 610, 617-19 (1976).

See Leon, 244 Ariz. at 469, ¶ 12 (“With limited exceptions, erroneous jury instructions are subject to either harmless or fundamental error review.”); ¶ 16 (App. 2011) (applying harmless error analysis to improper comment on defendant’s constitutional right to silence).

Doyle v. Ohio, 426 U.S. 610, 618 (1976) (silence); ¶ 15 (2012) (attorney request).

¶ 12 (2012) (“The prosecution may not comment on a defendant’s exercise of his right to remain silent.”).

Doyle v. Ohio, 426 U.S. 610, 618-19 (1976); ¶ 15 (2012).

Doyle v. Ohio, 426 U.S. 610, 617–20 (1976); –37, ¶¶ 14–15 (2012).

Doyle v. Ohio, 426 U.S. 610, 617–20 (1976); Miranda v. Arizona, 384 U.S. 436, 474, 478-79 (1966); ¶ 14 (2012); ¶ 18 (1999).

¶ 14 (2012) (citations omitted).

Therefore, the purpose of the Miranda warning — to safeguard the Fifth Amendment right against self-incrimination — is not implicated here, -36, ¶¶ 10-11, -51 (2012), and does not provide any basis for assignment of error.

(noting Ramirez involved prosecutorial comment on defendant’s actual statements and demeanor rather than his silence); see also 3 Prior to the question being asked, Lopez had cross-examined witnesses and attempted to elicit testimony suggesting he had acted in self-def