A person learns the police are looking at him and hires a lawyer before he talks to them. He has not been charged with anything. Later, at trial, can the prosecutor point to that decision and ask the jury to draw something from it?
Until last week, no Pennsylvania Supreme Court decision answered that question. In Commonwealth v. Jenkins, No. 66 MAP 2024 (Pa. Oct. 1, 2026), the Court answered it. A prosecutor may not tell the jury that the defendant sought a lawyer’s help before police questioning or before arrest. All seven Justices agreed on that. They split five to two on what follows from the error, and the majority held that it does not automatically require a new trial. Ronald Jenkins’s conviction was affirmed.
The Closing Argument
Jenkins was charged in Dauphin County with kidnapping and with raping an unconscious person. The Commonwealth’s evidence was that he spent Valentine’s Day evening in 2017 at the apartment of a longtime friend and the friend’s girlfriend, that the girlfriend was thrown against a wall hard enough to leave a hole in it, and that she remembered nothing afterward until she woke up partly undressed in Jenkins’s motel room. Motel surveillance video showed Jenkins carrying her limp body over his shoulder into the room at about 3:15 a.m.
Two months later, before any charges were filed, a detective interviewed Jenkins by telephone. Jenkins had hired a lawyer by then, and the lawyer was on the call. Jenkins denied any wrongdoing and specifically denied having sex with the woman. DNA results that came back afterward identified his semen. The recording of the call was played for the jury. Jenkins did not testify.
In closing, the prosecutor argued that Jenkins had lied to the detective. The Court had no quarrel with that argument. The problem was how she got there. She told the jury that Jenkins knew the matter was serious, so “[h]e gets a lawyer. He gets an attorney. This isn’t some schlep who just went in and spoke with the police” without someone there to protect his rights. Then: “What does he do when he has the time to come clean? He lies.”
Defense counsel moved for a mistrial. The trial judge denied it but gave the jury what is called a curative instruction, meaning a direction from the judge telling jurors to disregard something improper they heard. The judge told them that the law prefers statements to police be given with counsel, that any reasonable person accused of an offense, “innocent or not,” would be expected to use a lawyer, and that they were to take no adverse inference from Jenkins having done so.
The Rule All Seven Justices Agreed On
Jenkins could not rely on the Sixth Amendment right to counsel, because that right does not attach until a person is formally charged. He argued instead that the comment denied him a fair trial under the Due Process Clause of the Fourteenth Amendment.
Chief Justice Todd’s majority opinion agreed that the comment was error. Hiring a lawyer says nothing about guilt. A person who consults a lawyer may believe he is guilty, may believe he is innocent, or may not know where he stands, and the most likely reason for the consultation is to find out. Because the fact proves nothing, telling the jury about it only invites a verdict based on something other than the evidence. The Court drew on decisions from other courts reaching the same result, including the Third Circuit’s decision in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), and the Connecticut Supreme Court’s decision in State v. Angel T., 973 A.2d 1207 (Conn. 2009). It also cited the Superior Court’s decision in Commonwealth v. Lang, 275 A.3d 1072 (Pa. Super. 2022), where a defendant’s internet search for criminal defense lawyers had been admitted against him.
The holding is stated broadly: it is error for a prosecutor to inform the finder of fact that a defendant sought the advice or assistance of counsel before police questioning, or before arrest, for the offense on trial. The Court also found this particular comment worse than a bare mention, because it tied the lie to the lawyer and suggested Jenkins lied with counsel’s help or approval. The Commonwealth could have argued that Jenkins lied without mentioning the lawyer at all.
One limit on the decision appears in a footnote. Jenkins did not develop a separate argument under Article I, Section 9 of the Pennsylvania Constitution, so the Court decided the case under federal law only. Whether the state constitution gives more protection was not presented.
Why the Error Did Not Mean a New Trial
Courts sort constitutional errors at trial into two groups. Most are “trial errors,” which a reviewing court can excuse if the Commonwealth shows beyond a reasonable doubt that the error could not have contributed to the verdict. That is harmless error review, and it comes from Chapman v. California, 386 U.S. 18 (1967). A small number are “structural errors,” which are defects so basic to the trial that reversal is automatic. Trial before a biased judge and the complete denial of counsel are the standard examples.
Jenkins argued that this error was structural under Weaver v. Massachusetts, 582 U.S. 286 (2017), which describes three reasons an error may be treated that way: the right involved protects some interest other than avoiding a wrongful conviction, the effects of the error are too hard to measure, or the error always makes a trial fundamentally unfair.
The majority rejected all three. On the first, it reasoned that the right at stake is the right to a verdict based only on the evidence, and that right exists “first and foremost” to prevent wrongful convictions. On the second and third, it described the comment as a single event near the end of a three-day trial, the kind of error whose effect can be weighed against the rest of the record and corrected by an instruction. The Court noted that neither it nor the United States Supreme Court has ever treated an improper closing argument as structural, and it pointed to Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014), which applied harmless error review to a prosecutor’s comment on a defendant’s silence before arrest.
Applying that review, the Court found the uncontradicted evidence overwhelming and the prejudice slight in light of the prompt and specific instruction. In a footnote, the Court observed that in the out-of-state and federal cases granting new trials for this kind of comment, either no timely objection was made or the judge gave no instruction or an inadequate one.
Three Separate Opinions
Justice Wecht joined the majority and wrote separately on two points. First, he addressed the majority’s choice to say the comment “impacted” Jenkins’s due process right without saying it “violated” that right. His explanation is that a fair-trial claim is judged on the whole proceeding, so an improper remark can threaten the right without depriving the defendant of it. Second, he acknowledged that without reversal there may be little to deter prosecutors, “appellate finger-wagging notwithstanding,” and wrote that attorney discipline is another tool available to the Court: “Perhaps this tool should be deployed more frequently.”
Justice Mundy, joined by Justice Brobson, also joined the majority. She wrote that structural error is a limited class, that the Sixth Amendment right was not the right burdened here, and that this case is the counterpart to Molina. In a footnote she too pointed to the Court’s authority over attorney discipline as a way to discourage this conduct.
Justice McCaffery, joined by Justice Donohue, agreed the comment was improper and dissented from the harmless error holding. He would have found structural error under Weaver‘s first category. In his view the right to consult counsel, like the right to counsel of one’s choice in United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), protects self-determination, the functioning of the justice system, and voluntary compliance with the law, and not only accurate verdicts. He wrote that he could find no support in precedent for ranking those purposes. He also wrote that the comment attacked defense counsel’s integrity, and that leaving the conviction in place gives prosecutors a reason to try the argument and gives people a reason to wonder “whether the juice of consulting with an attorney is worth the squeeze.”
What Jenkins Changes for Defense Lawyers and Clients
For defense lawyers, the rule is now settled, and it gives a basis for a pretrial motion to bar any mention that the client consulted or retained counsel before arrest. That matters most where, as here, a recorded interview with counsel on the line will be played for the jury. If the reference comes out anyway, Jenkins shows what the reviewing court will look for: a timely objection, a mistrial motion, and the content of the instruction. Counsel should also see the other side of that record. The specific and prompt instruction defense counsel asked for in Jenkins is one of the two reasons the error was held harmless. And because the Court decided only the federal claim, an argument under Article I, Section 9 remains available to a lawyer who briefs it separately.
For lawyers who represent people before charges are filed, the decision confirms that sitting in on a client’s interview cannot properly be turned into evidence against the client.
For anyone who learns they are under investigation, the point is simple: hiring a lawyer before talking to the police is not evidence of guilt, and Pennsylvania’s highest court has now said a prosecutor may not suggest otherwise to a jury.