Simpson v. State, 112 A.3d 941

Simpson was tried for multiple arson incidents at his ex-girlfriend’s residence; police found gasoline on his shoes and an accelerant-detecting dog alerted on his car. He wrote and signed a handwritten confession at the station and also signed a detective’s written interview.
On retrial (after a prior mistrial on most counts), the prosecutor’s opening statement repeatedly said “the defendant will tell you” and “the defendant himself will tell you,” referring to Simpson’s admissions. Defense objected; court overruled.
Simpson elected not to testify; the State introduced his written statements during its case-in-chief. The jury convicted on one count (attempted second-degree arson of an automobile) and acquitted or hung on others.
Simpson appealed, arguing the prosecutor’s opening impermissibly commented on his Fifth Amendment/Article 22 right not to testify; the Court of Special Appeals affirmed. The Court of Appeals granted certiorari.
The Court of Appeals held the prosecutor’s opening was reasonably susceptible of an adverse inference that Simpson would testify (or was obliged to) and thus violated the privilege against self-incrimination; the error was not harmless and required a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s remarks in opening that “defendant will tell you” violated the right not to testify	Simpson: phrasing suggested jury should expect him to testify and penalize his silence; impermissible comment on Fifth Amendment/Article 22 and CJP § 9-107	State: remarks referred to prior written confession (not trial testimony); prosecutor had reasonable opening latitude and any error was harmless	Court: Remarks were reasonably susceptible of an adverse inference about silence; violated the privilege against self-incrimination
Whether the error was harmless beyond a reasonable doubt	Simpson: the error undermined fairness; jury’s mixed verdicts show confession’s role was not overwhelming	State: cured by defense opening/closing and jury instructions; evidence of guilt (at least on one count) was overwhelming	Court: State failed to prove harmlessness beyond a reasonable doubt; new trial required

Griffin v. California, 380 U.S. 609 (prosecution/comment on defendant’s silence violates Fifth Amendment)
Smith v. State, 367 Md. 348 (Maryland Court: prosecutor’s adverse-comment test — whether remarks are reasonably susceptible of an adverse inference — applied and reversal required)
Dorsey v. State, 276 Md. 638 (harmless-error standard: State must show beyond a reasonable doubt that constitutional error did not influence verdict)