State of Maine v. Jason M. Lovejoy, 2014 ME 48

Victim (Lovejoy’s daughter) testified that Lovejoy sexually abused her between ages ~5–8; no physical evidence but nurse said lack of findings did not rule out abuse.
Portland detective had one or two phone conversations with Lovejoy (then in North Carolina); Lovejoy denied the allegations and, according to defense counsel, told the detective he wanted to talk to a lawyer; he did not return subsequent calls.
At trial the detective testified that Lovejoy denied the allegations with a "flat affect" and that he did not return further calls; defense had sought to bar testimony mentioning the request for counsel, and the prosecutor agreed not to elicit that statement.
In closing the prosecutor argued Lovejoy’s failure to contact police showed his "consciousness of guilt," and repeatedly vouched for the victim’s credibility despite an objection and a court warning.
Lovejoy was convicted by a jury of two counts of gross sexual assault; he appealed, asserting Fifth Amendment/Maine Constitution violations and prosecutorial misconduct.
The Maine Supreme Judicial Court vacated the convictions and remanded, holding that pre-arrest silence following an unambiguous request to consult counsel cannot be used as evidence of guilt and that the prosecutor improperly vouched for witness credibility.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of pre-arrest silence as evidence of consciousness of guilt	State: Silence (failure to return calls) is admissible circumstantial evidence of consciousness of guilt	Lovejoy: He invoked the right to counsel and the right to remain silent; using his silence as evidence violates the Fifth Amendment and Maine Constitution	Court: Admission and argument were unconstitutional—pre-arrest silence after an explicit request to consult counsel cannot be used as evidence of guilt; error was plain and prejudicial, so convictions vacated
Prosecutorial vouching for witness credibility	State: Prosecutor’s credibility remarks were proper argument about the evidence	Lovejoy: Prosecutor impermissibly vouched and continued after the court warned to stop	Court: Prosecutorial vouching occurred, repeated after warning, and combined with the silence issue was not harmless—contributed to unfair trial
Sufficiency of evidence challenge	State: Testimony of victim and others provided sufficient evidence	Lovejoy: Evidence insufficient without physical corroboration	Court: Sufficiency challenge fails given victim’s testimony; court did not rely on this issue because convictions vacated

State v. Diaz, 681 A.2d 466 (Me. 1996) (pre-arrest silence admitted as evidence violated Fifth Amendment where prosecution emphasized silence)
State v. Patton, 50 A.3d 544 (Me. 2012) (post-arrest invocation of counsel improperly used by State was constitutional error; harmlessness analysis applied)
Griffin v. California, 380 U.S. 609 (1965) (prosecutor/comment on defendant’s failure to testify is prohibited)
Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation warnings and protection of post-arrest silence)
Doyle v. Ohio, 426 U.S. 610 (1976) (post-Miranda silence cannot be used against defendant)
Jenkins v. Anderson, 447 U.S. 231 (1980) (use of prearrest silence to impeach a defendant’s credibility does not violate Constitution)
United States v. Okatan, 728 F.3d 111 (2d Cir. 2013) (request for a lawyer during noncustodial questioning constitutes invocation of Fifth Amendment privilege)