Big Debate: Is Holmes' 'Smirk' Evidence?

When a handcuffed James Holmes was asked by one cop whether he had acted alone in the Aurora theater shooting that had ended only minutes before, Holmes said nothing but gave what the officer yesterday described as "a self-satisfying offensive smirk." A prosecutor at Holmes' hearing argued that the smirk was Holmes' way of saying he was satisfied with what had just happened, and wants the officer to be able to repeat the story at trial next year. But Holmes' defense says silence is not a response, and thus can't be used as evidence, the AP reports. "This was nothing more than silence, and it should be analyzed as such," his attorney told the court.

Holmes did answer another cop's question about whether he acted alone—he said he had—but his defense is also trying to stop that from reaching trial, saying he answered before he had been Mirandized. But prosecutors are arguing for the "public safety" exception, claiming the cops needed to know immediately if another gunman was on the loose. Now the judge has to decide whether either of these things can be used as evidence in the trial. He agreed the word "offensive" might be too subjective, but still hasn't ruled either way on whether the smirk will get its day in court. (More James Holmes stories.)