# Petitioners Brief — United States v. Hale

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 171

## Text

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FEB 11 4975

E Supreme Court, U. $.
[ FibkLED

MICHAEL RODAK, JR, CLERK

No. 74-364

Inthe Supreme Court of the Anited States

OctToBeR TERM, 1974

UNITED STATES OF AMERICA, PETITIONER
U.
Wittiam G. Hae

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

ROBERT H. BORE,
Nolicitor General,
JOHN C. KEENEY,
Acting Assiatant Attorney General,
ANDREW L. FREY,
Deputy Solicitor General,
ROBERT B. REICH,
Assistant to the Solicitor General,
JEROME M. FEIT,
IVAN MICHAEL SCHAEFFER,
Attorneys,
Department of Justice,
Washington, D.C. 20530.

INDEX

SE nccccccestbutcintibbachimstnbeesonunaes
EE
a
Constitutional provision involved _-____...............-.
PRRs ancumuncodddadbundiduauaeeaeeqnenend
I GF CRs ite ctnidticnwndatvectacecncenns
Argument:

I.

Il.

The jury should be permitted to assess the credibility
of a defendant’s testimony by learning of his prior
failure to explain seemingly incriminating circum-
en Oe Ge sd od dls cc ate bawonsecccncs

A. The necessity to test the credibilil, of a defendant’s

testimony and to obtain the “whole truth”
requires that the jury be allowed to consider his

B. Neither Griffin nor Miranda requires the result
reached by the court of appeals______._...----
Testing of a defendant’s credivility by reference to his
prior failure to give his story to the police neither
coerces nor impermissibly burdens his choice to
remain silent before the police, nor is it wofair____-
A. The possibility of impeachment of a defendant’s
testimony by reference to his prior silence is a

far less severe detriment than other disad-
vantages that this Court has held may con-
stitutionally attach to exercise of the privilege
against self incrimination, nor does it constitute

an impermissible compulsion to answer police
MEER i cadksoncctbuhbabbstende ebeasaeeece

B. It is not “‘unfair” to advise an accused that he has
a right to remain silent and then use his silence

to impeach his trial testimony-----.---..-------

C. The constitutional values and policies reflected in
the privilege against self incrimination were not
impaired by the cross-examination of re-
COREE. 0 ccctddaccsccnecesbetoeveewstouns

IlI. The jury is competent to gauge the probative weight

of such impeachment evidence.........-....-----
(pr)

658 -620—75——-1

ee

12

12

22

27

28

38

Ss

Page
Ee EE Co 55
CITATIONS
Adamson v. California, 332 U.S. 46_......-..--- 2 . 46
Agnellino v. State of New Jersey, 493 F.2d 714_..-..__- 16
Brady v. United States, 397 U.S. 742_......_--. 32
Brown v. Mississippi, 297 U.S. 278__....._.....__... 30
Brown v. United States, 356 U.S. 148___.__________. 37
Bruno v. United States, 308 U.S. 287___.._.________. 23
Caminetti v. United States, 242 U.S. 470__..________. 18
Deats v. Rodriguez, 477 F. 2d 1023___..-..._-______- 16
Egger v. United States, C.A. 9, No. 74-2196, decided

I Ey Ce nitidaendicecussieoniasansiinh, nib 5
Elkins v. United States, 364 U.S. 204__.._._________ 7
Fiizpatrick v. United States, 178 U.S. 304......__.__- 37
Fowle v. United States, 410 F. 2d 48_______________. 16
Gallegos v. Colorado, 370 U.S. 49__--.-..-._--_ 30
Garrity v. New Jersey, 385 U.S. 493... ___________. 29, 30
Griffin v. California, 380 U.S. 609____- 5, 8, 22, 23, 24, 26, 30

Grunewald v. United States, 353 U.S. 391___________. 5,
11, 12, 21, 44, 50, 52, 54, 55

Harris v. New York, 401 U.S. 222_.._._..._-._______. 6,

7, 8, 13, 14, 15, 16, 17, 26, 42
Johnson v. Patterson, 475 F. 2d 1066, certiorari denied,

ERE nE a eee eee ee Se mene Oh 16
Johnson v. United States, 318 U.S. 189______________ 40
BS C. Te, GIS Be Eavcctndcccccwinsceindtace 29
McGautha v. California, 402 U.S. 183____. wey WE st 9, 31, 34
McMann v. Richardson, 397 U.S. 759_...__________. 32
Michigan v. Tucker, 417, U.S. 433__.--.-.._-___- 24, 25, 29
Miranda v. Arizona, 384 U.S. 436_..__.__.________. 3,

6, 8, 9, 10, 14, 17, 24, 25, 26, 28-29, 30, 38, 39, 43, 46, 52
Murphy v. Waterfront Commission, 378 U.S, 52_-___- 40
Nardone v. United States, 308 U.S. 338__.-.._______- 43
Parker v. North Carolina, 397 U.S. 790____.__.____- 32
Raffel v. United States, 271 U.S. 494_.--_---2-- 2 ee 8,

13, 18, 19, 20, 21, 23, 26, 48
Robideau v. Rhay, 431 F. 2d 880___________.._____. 16
Schneckloth v. Bustamonte, 412 U.S. 218_____.._____- 38
Segura v. Patterson, 402 F. 2d 249__--._._._._._-_-.-__ 37

TIL
Cases—Continued a
Spencer v. Teras, 385 U.S. 554......_....-------- 13, 37, 48
State v. Anderson, 253 S.C. 168, 169 S. E. 2d 706,
rehearing denied, 397 U.S. 1031__.........-.-.---- 49
Stewart v. United States, 366 U.S. 1__-........------ 21
United States v. Brinson, 411 F. 2d 1057__.________-- 16
United States v. Calderon, 348 U.S. 160_...-._-...-_-- 37
United States v. Fairchild, C.A. 5, No. 74-2097, decided
SE Uk Senda ebcseebedsccentanbencetsoiise 16
United States v. Kordel, 397 U.S. 1...-.....--------- 26
United States v. Nixon, No. 73-1766, decided July 24,
hia ae eR eh eene 7
United States v. Quintana-Gomez, 488 F. 2d 1246____-_- 16
United States v. Ramirez, 441 F. 2d 950, certiorari
i cen dataginakeentoascennecans 15
United States v. Ravich, 421 F.2d 1196_._..._....---- 49
United States ex rel. Burt v. State of New Jersey, 475
iy hint cotta abeieeie dl nedkndetiagadesnennets 16, 17
Vajtauer v. Commissioner of Immigration, 273 U.S. 103- 26
Walder v. United States, 347 U.S. 62_.....----------- 13
Watts v. Indiana, 338 U.S. 49... --...-.--.---------- 30
Williams v. Florida, 399 U.S. 78_. _--------- 9, 34, 35, 36, 42
Wilson v. United States, 149 U.S. 60_......---------- 19, 23
Constitution, statutes and rule:
United States Constitution, Fifth Amendment----- -- 2,
6, 8, 12, 14, 18, 20, 21, 22, 25, 26, 27, 28, 30, 31, 32,
35, 43, 49, 52, 54
United States Constitution, Fifth Amendment- - -- --- 2,
Rs Ba ncccacedaegheseosocadousscsesacene 19
SS EES, GHD Bite ccccncccsceccecncesnceceseeese 2
ee, Se co eensuenbansecesuswesedns 49
Miscellaneous:
ALI, Uniform Rules of Evidence, Rule 45_----------- 49
British Criminal Law Revision Committee, Eleventh
Report, Evidence (General) 16 (England, 1972) - --- 49
Cross, Evidence 180 (1967) _...--.------------------- 49
1 Wigmore, Evidence, § 58, 196 (McNaughton rev. ed
SOD... npcccscvecccuccessesoecsosoccececeescencs 48
3 A Wiguue Evidence, § 890 (McNaughton rev. ed.
1961)... ... 2.2222 oo ene ooo oo - 0 oe oo oe 13.
8 Wigmore, Evidence (McNaughton rev. ed. 1961):
, ee =

In the Supreme Court of the Wnited States

OctToBER TERM, 1974

No. 74-364

UNITED StaTES OF AMERICA, PETITIONER
v.
WituiamM G. HALE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)
is reported at 498 F. 2d 1038.

JURISDICTION

The judgment of the court of appeals (Pet. App.
B) was entered on May 21, 1974, and the court of
appeals denied a petition for rehearing with a sug-
gestion for rehearing en banc on August 1, 1974 (Pet.
Apps. C and D). On August 26, 1974, Mr. Justice
Marshall extended the time for filing a petition for a
writ of certiorari to and including September 30, 1974,
on which date the government’s petition was filed. The

(1)

2

petition was granted on December 9, 1974. The juris-
diction of this Court rests upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Fifth Amendment bars cross-examina-
tion of a defendant who has given exculpatory testi-
mony at trial as to why he failed to offer such
information at the time of his arrest.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment provides, in pertinent part:

ito person shall * * * be compelled in any
criminal case to be a witness against him-
">.

| STATEMENT

After a jury trial in the United States District
Court for the District of Columbia, respondent was
found guilty of robbery, in violation of 22 D.C. Code
2901. Imposition of sentence was suspended, and he
was placed on probation for three vears. On appeal,
the court of appeals reversed respondent’s conviction
(498 F. 2d 1038; Pet. App. A).

1. The government’s case rested largely on the tes-
timony of Lonnie Arrington, the complaining witness,
who testified that respondent was one of five men who
robbed him of approximately $96 (Tr. 25-30).? Dur-

* Respondent’s co-defendant, Flemming Anderson, was indicted
on February 10, 1972. Both cases were consolidated for trial.

* Arrington conceded on cross-examination that he had origin-
ally told the police that the robbers had taken $65. He ex-
plained that this was an estimate given shortly after the rob-
bery. After he had an opportunity to discuss the day’s pur-
chases with his wife, however, he re-estimated his loss to be
about $96, and he testified to that effect before the grand jury
(Tr. 55-56).

3

ing the course of the robbery, Arrington thought he
saw the person who took his roll of money pass it all
to respondent (Tr. 36). Soon after the robbery oceur-
red, as Arrington waited with a police officer for
a scout car to take him through the area to search
for the robbers (Tr. 38-39), he spotted respondent
walking with another man (Tr. 39, 41, 73) and recog-
nized respondent as one of the men who had just rob-
bed him (Tr. 39). When, in response to Arrington’s
identification, the officer approached respondent and
his companion, respondent fled (Tr. 39-40). After a
short chase, he was apprehended a few blocks away
and arrested.

The record indicates that respondent was then taken
to the police station and informed of his rights in
accordance with Miranda v. Arizona, 384 U.S. 436, in-
cluding his right to remain silent (Tr. 259). He was
then searched and found to have $123 in his pants
pocket (Tr. 112-113). Respondent offered no ex-
planation of this suspicious circumstance when ques-
tioned by the police regarding his possession of the
money (App. 5).°

2. At trial, respondent’s estranged wife testified that
she had received a $180 welfare check on the day of

*The fact that the police specifically asked respondent to ex-
plain his possession of the money found on his person was re-
vealed by the prosecutor at a bench conference following cross-
examination in which respondent had already admitted that
he had offered no such explanation (App. 5). Had the pros-
ecutor been permitted to continue the line of questioning,
therefore, he would have had an opportunity to elicit the fact
that no explanation had been pi<ffered despite specific police

inquiry.

4

the robbery (Tr. 190-193) and, after cashing it, had
given respondent about $150 of the total with which
to purchase some money orders (Tr. 194, 196-i97).
Respondent then testified on his own behalf and pro-
vided the same explanation for his possession of the
money—that his wife had received her welfare check
that day and had given him about $150 so that he
couid purchase some money orders for her (Tr. 217-
219). Subsequently, on his way to obtain the money
orders, he encountered a friend (Tr. 226). Shortly
thereafter, as respondent and his friend walked near
the police station, several officers approached and
attempted to talk to him. Because respondent’s
friend had narcotics in his possession, respondent fled
from the police, fearing that he would be implicated
(Tr. 227).

3. In an effort to impeach respondent’s testimony,
the prosecutor led respondent on cross-examination to
admit that he had not explained to the police at the
time of his arrest the source of the money found on
his person (App. 4):

Q. Did you in any way indicate [to the
police] where that money came from?

A. No, I didn’t.

Q. Why not?

A. I didn’t feel that it was necessary at the
time.

Q. You were advised of your rights, were you
not?
A. Yes.
Immediately following this exchange, the district
court cautioned the jury that the questioning was im-

5

proper and that they should disregard it. The court
stated (Pet. App. A, p. 17A; App. 5): *

He is not required to indicate where the
money came from. There is no responsibility on
his part in regard to that. * * * I indicated to
the jury that it is clearly an inappropriate
question. You may disregard it, ladies and
gentlemen. The defendant is not required to
give any explanation whatsoever at the time
of his arrest.

4. In a 2-1 decision, the court of appeals ruled that
this cross-examination was improper and required a
new trial. The majority reasoned that Griffin v. Cali-
fornia, 380 U.S. 609, barring comment to the jury
upon a defendant’s failure to testify at trial, similarly
barred disclosure of a defendant’s assertion of his
Fifth Amendment privilege during police interroga-
tion. Moreover, since respondent was told that he
had a right to remain silent during interrogation, his
failure to explain to the police the source of the money
found on his person was considered to be not incon-
sistent with his subsequent trial testimony. The major-
ity relied in this regard upon Grunewald v. United
States, 353 U.S. 391, in which this Court prohibited

*The majority in the court of appeals rejected the notion
that this caution to the jury overcame the effect of the im-
propriety it found in the prosecutor’s questions (Pet. App. A,
p. 13A). We, of course, disagree with the statement of the
district court and the conclusion of the court of appeals that
the questioning was improper. In any event, we do not rely
here on any argument that the district court’s caution to the
jury was sufficient to obviate the error, if there was error. See
note 5, infra. But see Egger v. United States, C.A. 9, No.
74-2196, decided January 2, 1975.

568—620—75——-2

6

cross-examination of a defendant as to a prior, valid
assertion of his Fifth Amendment privilege before
a grand jury.

Judge Wilkey dissented on the ground, inter alia,
that a defendant who testifies at trial waives the privi-
lege against self-incrimination and is subject, as any
other witness, to extensive cross-examination caleu-
lated to test his credibility (Pet. App. A, pp. 17A-
31A). Relying upon Harris v. New York, 401 U.S.
222, in which this Court held that a defendant could
be impeached by statements given the police in the
absence of sufficient Miranda warnings, Judge Wilkey
reasoned that a defendant’s failure to offer the police
an explanation of incriminating circumstances should
be disclosed to the jury in order to enable it reason-
ably to evaluate the credibility of the defendant’s
trial testimony.°

SUMMARY OF ARGUMENT

The existence of an adequate opportunity to test
the credibility of a defendant who takes the stand
in his own behalf is crucial to the mission of a trial—
accurate ascertainment of the truth. “The need
to develop all relevant facts in the adversary system

* Judge Wilkey also relied for his dissent on the alternative
ground, rejected by the majority (Pet. App. A, pp. 12A-15A),
that even if the questioning were deemed improper, the defect
was harmless beyond a reasonable doubt and therefore did not
warrant reversal of respondent’s conviction (Pet. App. <A,
pp. 31A-33A). While we agree with Judge Wilkey’s analysis of
this issue, the controversy on the point involves the application of
an essentially undisputed standard to the facts of a particular
case. Accordingly, we did not present the “harmless error” issue
in our petition for certiorari. :

7

is both fundamental and comprehensive. The ends
of criminal justice would be defeated if judgments
were to be founded on a partial or speculative presen-
tation of the facts.” United States v. Nixon, No. 73-
1766, decided July 24, 1974, slip op. 24. Exceptions
to the age-old principle demanding “every man’s evi-
dence’? should not be lightly created nor expansively
construed. “Limitations are properly placed upon the
operation of this general principle only to the very
limited extent that permitting a refusal to testify or
excluding relevant evidence has a public good trans-
cending the normally predominant principle of utiliz-
ing all rational means of ascertaining truth.” Elkins
v. United States, 364 U.S. 206, 234 (Frankfurter, J.,
dissenting, cited with approval in United States v.
Nixon, supra, slip op. at 25, n. 18).

In disallowing a form of cross-examination that
exposes a testifying defendant’s prior failure to ex-
plain seemingly incriminating circumstances, how-
ever, the court below ignored this precept and effec-
tively rendered a defendant immune from one of the
‘‘traditional truth-testing devices of the adversary
process,” Harris v. New York, 401 U.S. 222, 225.
Here, respondent took the stand in his own defense
and testified that on the morning of the robbery his
wife had given him the cash that was found on his
person soon after the robbery, for the purpose of ob-
taining some money orders with which she could pay
some bills (Tr. 219). Cross-examination designed to
discredit this explanation by revealing that respond-
ent had failed to provide it to the police was, how-

8

ever, held to be violative of respondent’s Fifth
Amendment privilege.

We submit that the exclusion of such plainly rele-
vant and probative evidence, going to the credibility
of respondent’s explanation of otherwise incriminat-
ing circumstances, finds no support in either the
history or the logic of the Fifth Amendment privilege
against self-incrimination. Although it may be im-
pernissible for the proseeution to introduce as evi-
dence of guilt the fact that the defendant chose to
remain silent during post-arrest questioning, once
the defendant chooses to take the stand and testify
in his own behalf the privilege no longer bars the
introduction of such evidence for the limited purpose
of impeaching his trial testimony. Harris v. New
York, 401 U.S. 222; Raffel v. United States, 271 U.S.
494,

The court of appeals’ majority erroneously relied
on Griffin v. California, 380 U.S. 609, and Miranda
v. Arizona, 384 U.S. 486, as governing this case.
Griffin is critically different, however, because it in-
volved a non-testifying defendant, so that the ‘‘whole
truth’? policy of Harris and the waiver principles of
Raffel were not implicated. As for Miranda, its prin-
cipal thrust was to protect against impermissible co-
ercion of arrestees; here, respondent did enjoy a free
choice between voluntary silence and _ voluntary
speech. Either election may, of course, carry poten-
tially disadvantageous consequences, but that is no
objection so long as the choice between them is not
impermissibly compelled.

9

Nor is a suspect’s election to remain silent during
custodial interrogation impermissibly burdened by
the possibility that, should he decide to testify at trial
regarding the seemingly incriminating circumstances
of his arrest, he may also be called upon to explain
to the jury why he previously failed to offer such
information to the police. Such a strategically disad-
vantageous consequence of invoking the privilege en-
tails nothing more than a choice about trial tactics.
It is a kind of consequence inherent in our adversary
system, and one that has never been found to place an
impermissible burden upon the right to remain silent.
See McGautha v. California, 402 U.S. 183; Williams
v. Florida, 399 U.S. 78. It in no way compels an ac-
cused to waive his privilege, in terms of criteria to
which this Court has referred for ascertaining volun-
tariness, nor does it undermine the other values that
the privilege against self-incrimination has been
thought to protect.

The court of appeals also predicated its decision on
the notion that it is unfair to tell a suspect that he
has a right to remain silent and then make some use
of that silence against him. The Miranda warning does
not, however, make any kind of promise to the arrestee
that his silence will carry with it no adverse conse-
quences. Indeed, it could not properly do so, since,
apart from the consequence at issue in this case, other
more substantial and more immediate adverse conse-
quences are likely to flow from failure to tender a sat-
isfactory explanation of incriminating circumstances,
foremost among which is the enhanced likelihood that

10

there will be a criminal prosecution of the arrestee.
Finally, with regard to the question of fairness, the
court of appeals has erroneously equated the stand-
ards for assuring an informed waiver of a constitu-
tional right with those that should govern a decision
not to waive an approach that is not only unprece-
dented and unjustified, but revolutionary in its ram-
ifiecations.
Apart from these relatively direct constitutional
considerations, there remains the question whether
such eross-examination should be proscribed because
its potential for prejudice inevitably outweighs its
probative value. We believe there is no sound founda-
tion for such a conclusion, and that a prior failure to
explain is often probative of the falsity of the explana-
tion proffered at trial. It defies common sense to deny
that a suspect who has a truthful, innocent expiana-
tion for otherwise incriminating facts about which the
police have knowledge will in most circumstances de-
‘cide that disclosure is advantageous despite the fact
that it is not required, since an exculpatory explana-
tion, if he has one, may well result in his immediate
release from the criminal process and will at a min-
imum neutralize the danger from those facts. Another
practical incentive for disclosure of an exculpatory
explanation is the fact that prompt disclosure pro-
vides an opportunity for independent verification free
of the suspicions of fabrication that prosecutive au-
thorities might naturally be expected to entertain in
the ease of delayed explanations.
The Miranda warnings, informing a suspect that he

ll

has a right to remain silent during custodial interro-
gation, do not stand for the proposition, nor they
intended to foster the impression, that the suspect
should maintain his silence notwithstanding any ad-
vantage that may accrue to him upon disclosure. The
failure to give an explanation to the police will there-
fore in many circumstances cast real doubt upon the
veracity of the explanation when offered at trial.
Although the probative weight to be given any par-
ticular failure to explain incriminating cireumstam 2s
to the police presumably will depend upon many fa
tors—including the relative ease of providing the in-
formation to the police and the concomitant ease with
which the police could assess its accuracy, as well as
the personal characteristics of the acecused—there is no
reason to assume that the jury will be unable accu-
rately to assess the probative value of such evidence,
particularly where, as here, the court cautions the jury
that an accused is not required to offer information to
the police. Indeed, the defendant has an opportunity
at trial to rebut any unfavorable inference to which
his silence before the police may have given rise by ex-
plaining to the jury his reason for deciding not to pro-
vide the police with the information about which he
subsequently testifies. In short, it cannot fairly be said
that the availability of such evidence is more likely to
hinder than to aid the jury in its search for the truth.
The court of appeals believed its contrary conclu-
sion to be dictated by Grunewald v. United States, 353
U.S. 391, which held that, in the “particular cireum-
stanees” of that case, the defendant’s refusal on self-

os 4

12

inerimination grounds to testify before the grand jury
had no probative impact on the credibility of his trial
testimony. That particularized conclusion was no
doubt sound, but the facts in Grunewald and those of
the instant case are worlds apart. Moreover, in Grune-
wald the cross-examination revealed an affirmative
claim by the defendant on an earlier occasion that his
answers might tend to incriminate him, information
that carried a high risk of improperly prejudicing the
jury. No such information was conveyed to the jury
by the cross-examination of respondent.

ARGUMENT

I. THE JURY SHOULD BE PERMITTED TO ASSESS THE OREDI-
BILITY Uf A DEFENDANT’S TESTIMONY BY LEARNING OF
HIS PRIOR FAILURE TO EXPLAIN SEEMINGLY INCRIMI-
NATING CIRCUMSTANCES TO THE POLICE

A. The necessity to test the credibility of a defendant’s
testimony and to obtain the “‘whole truth” requires
that the jury be allowed to consider his prior failure
to tell it to the police

A defendant who takes the stand place: himself in a
fundamentally different position from one who does
not. Once on the stand, he is subject like any other
witness to cross-examination designed to assure the
reliability of his testimony. Moreover, by choosing to
tell his side of the story to the jury, he waives his
Fifth Amendment privilege not only as to the part of
his story that he wishes the jury to hear, but as to the
whole story. We submit that both principles—the
necessity for testing the truth of a defendant’s testi-
mony and the quest for the ‘‘whole’’ truth—make it

13

proper to cross-examtine 4 defendant as to why he
failed to tell his story to the polite.* |

1. Once he takes the stand and testifies on his own
behalf, a defendant may be cross-examined like any
other witness as to matters reasonably related to the
subject of his direct examination "—including matters
that otherwise could not be brought to the jury’s at-
tention, such as prior convictions, Spencer v. Tezas,
385 U.S. 554, 561; evidence unlawfully seized, Walder
v. United States, 347 U.S. 62; refusals to testify on his
own behalf at prior trials, Raffel v. United States, 271
U.S. 494, 499; or inconsistent statements made during
police interrogation without proper Miranda warning,
Harris v. New York, supra.

A defendant’s silence during police interrogation
should be no exception to this principle. Although
it may be impermissible for the prosecution to intro-
duce as evidence of guilt the fact that an accused
chose to remain silent during interrogation or failed
to offer an innocent explanation of seemingly incrim-
inating circumstances, when a defendant testifies the
jury should be permitted to assess the credibility of
his story by learning that he previously declined to
tell it to the authorities. A defendant’s alibi or ex-

The guilty criminal defendant has substantial incentives to
commit perjury, in view of the personal consequences of a con-
viction. At the same ti.ae, the constraints that normally operate
to discourage witnesses from prevarication apply with dimin-
ished foree to the criminal defendant. These factors make it
especially important to allow thorough probing of the veracity
of the testifying defendant.

7™See 3A Wigmore, Hvidence $890 (McNaughton rev. ed.
1961) and cases cited thereim.

568-620—75——-3

14

eulpatory testimony—often. central to his defense—
should not be any more immunized from accurate
evaluation than the testimony of any other witness.
Nor should an accused’s choice te remain silent dur-
ing police interrogation thereby license him to give
false testimony at trial, free from the possibility that
he may be called upon to explain why he failed to
give the exculpatory information to the authorities
at the time of his arrest.

Harris v. New York, supra, provides strong sup-
port for this proposition. There, the defendant,
charged with selling heroin to an undercover police
officer, took the stand in his own defense and denied
the sale. On cross-examination, the defendant was
asked about certain statements he had made to the
police that were inconsistent with his trial testimony.
Those statements had not, however, been preceded by
proper Miranda warnings, and they therefore had to
be deemed presumptively coerced in violation of the
defendant’s Fifth Amendment privilege. Miranda v.
Arizona, 384 U.S. 436. The trial judge permitted the
questioning, instructing the jury that the statements
attributed to the defendant by the prosecution could
be considered only in determining credibility and not
as evidence of guilt.

This Court held that the Fifth Amendment does
not bar the introduction of such statements, although
made without adequate Miranda warnings, for the
limited purpose of impeaching a defendant’s trial
testimony. While such statements are irrebutably
presumed to be compelled in derogation of the Fifth

15

Amendment when admitted as evidence of guilt, the
Court in Harr’s reasoned (401 U.S. at 224-225):
It does not follow * * * that evidence inad-
missible against an accused in the prosecution’s
case in chief is barred for all purposes * * *.
Having voluntarily taken the stand, petitioner
was under an obligation to speak truthfully
and accurately, and the prosecution here did no
more than utilize the traditional truth-testing
devices of the adversary process.
The Court observed that prohibiting the use of such
statements would be tantamount to licensing a defend-
ant to resort to perjured testimony in reliance on
the government’s disability to challenge his credibil-
ity. “But that privilege [against self-incrimination]
cannot be construed to include the right to commit
perjury * * * by way of a defense, free from the
risk of confrontation with prior inconsistent utter-
ances.” Id. at 225-226.

If.the jury may test a defendant’s credibility by
reference to prior inconsistent statements elicited in
presumptive violation of his Fifth Amendment privi-
lege, it follows that the jury should be permitted to
test a defendant’s credibility by reference to his prior
inconsistent silence at the time of his arrest, when
there hes been no such violation.’ Had respondent

*Two of the circuits that have considered the question
whether a defendant’s silence at police interrogation can be
used to impeach his credibility at trial have concluded, in
light of Harris, that such cross-examination is constitutionally
permissible. Thus, in United States v. Ramirez, 441 F. 2d 950
(C.A. 5), certiorari denied, 404 U.S. 869, the defendant testi-

- fied at trial that he had been coerced into selling heroin by

16

given the police an explanation of the source of his
money contrary to the one he subsequently gave at

threats of harm from strangers. On cross-examination he ad-
mitted that he had never told the police this fact, and in clos-
ing argument the prosecutor urged that this silence was not
consistent with the conclusion that the trial testimony was
truthful. On appeal, the Fifth Circuit, relying on Harris,
stated (401 U.S. at 954) :

“Once [the defendant] elected to testify and assert the de-
fense of coercion he became subject to the ‘traditional truth-
testing devices of the adversary process,’ including the right
of the prosecution to show his prior inconsistent act of re-
maining silent at the time of his arrest.”

See also, United States ex rel. Burt v. State of New Jersey,
475 F. 2d 234 (C.A. 3); Agnellino v. State of New Jersey, 493 F.
2d 714 (C.A. 3); United States v. Quintana-Gomez, 488 F. 2d 1246
(C.A. 5); contra: United States v. Brinson, 411 F. 2d 1057
(C.A. 6); Robideau v. Rhay, 431 F. 2d 880 (C.A. 9); Fowle v.
United States, 410 F. 2d 48 (C.A. 9); Johnson v. Patterson,
475 F. 2d 1066 (C.A. 10), certiorari denied, 414 U.S. 868;
Deats v. Rodriguez, 477 F. 2d 1023 (C.A. 10). In its latest
pronouncement on the subject, the Fifth Circuit seems to have
retreated slightly from its broad holding in Ramirez, supra.
See United States v. Fairchild, CA. 5, No. 74-2097, decided
January 8, 1975.

The position of the Third Circuit is not altogether clear.
In Burt, supra, the defendant testified that the shooting death
for which he had been charged with murder had been acci-
dental. The prosecution elicited on cross-examination the fact.
that, when he had been arrested for an unrelated crime soon
after the shooting, the defendant had not sought to secure
assistance for the victim. The lead opinion in Aurt held that
the cross-examination was permissible because the defendant’s
silence during police interrogation had occurred before he
stood accused of the murder. The other two members of the
panel, however, issued a concurring opinion on the ground that
Harris allows impeachment by prior silence at a police station.

In Agnellino, supra, the defendant made statements to the
police but failed to indicate the source of stolen goods that were
found on his property. He testified at trial that he had pur-

17

trial, it is cléar under the Harris holding that such
explanation would, have been admissible to impeach
liis credibility even had it not been preceded. by
Miranda warnings. The same reasoning would seem
to apply even more forcefully to the instant case,
where the police acted entirely properly in providing
respondent full Miranda warnings, no statements of
any kind were elicited, and there is no question of
coercion.

Moreover, while the use of statements elicited with-
out Miranda warnings may, as this Court recognized
in Harris, give rise to an arguably “speculative pos-
sibility that impermissible police conduct will be en-
couraged thereby” (401 U.S. at 225)—a possibility
outweighed, in the Court’s view, by the benefit to the
fact-finding process of giving the jury an opportunity
to assess the credibility of the defendant’s testimony—
cross-examination such as that in the instant ease,
which merely apprises the jury of a defendant’s si-
lence before the police, obviously does not present even
that nominal danger.

2. By the same token, a defendant’s silence during
police interrogation should be no exception to the re-

chased them. During closing argument, the prosecutor com-
mented upon the defendant’s prior failure to provide this in-
formation to the police. The lead opinion, relying upon the
concurring opinion in Burt, held that the prosecutor’s com-
ment was permissible. The other two members of the panel,
however, concurred on the basis that what the defendant had
told the police was inconsistent with his trial testimony. They
viewed Burt as a situation in which the defendant's conduct in
not seeking assistance for the shooting victim was inconsistent
with his testimony at trial that the shooting had been acci-
dental.

18

lated principle that a defendant who offers himself as
a witness thereby waives his Fifth Amendment priv-
ilege without reservation. ‘“‘His waiver is not partial;
having once cast aside the cloak of immunity, he may
not resume it at will, whenever cross-examination may
be inconvenient or embarrassing.’ Raffel v. United
States, supra, 271 U.S. at 497. Having chosen to
waive the privilege at trial, therefore, a defendant
should not at the same time be insulated from consid-
eration of the import of his prior silence before the
police. He “may not stop short in his testimony by
omitting and failing to explain incriminating circum-
stanees and events”—such as his prior silence before
the police— ‘‘* * * without subjecting his silence to
the inferences to be naturally drawn from it.’’ Cami-
nettt v. United States, 242 U.S. 470, 494.

There is sound policy in requiring a defendant who
offers himself as a witness to do so without reserva-
tion and in allowing the prosecution to probe all seem-
ingly incriminating circumstances relevant to the
defendant’s testimony, including the fact that he pre-
viously failed to give the police the exculpatory in-
formation he gives the jury. “The safeguards against
self-inerimination are for the benefit of those who do
not wish to become witnesses in their own behalf and
not for those who do.” Raffel, supra, 271 U.S. at 499.
A defendant who becomes a witness in his own behalf
benefits from the opportunity to tell the jury his side
of the story. But the opportunity should not be one-
sided :

[An accused’s] voluntary offer of testimony
upon any fact is a waiver as to all other rele-

19

vant facts because of the necessary connection
between them all. Any voluntary disclosure
by the accused * * * distorts the probative
picture. * * * The accused has the choice at
the outset [whether or not to take the stand],
unhurried and with full knowledge that all
questions will relate to his incrimination [8
Wigmore, Evidence, § 2276, pp. 459-460 (Mc-
Naughton rev. ed. 1961) }.
A fair balance of advantages requires that the jury
have an opportunity to hear the entire story—includ-
ing the fact that the defendant previously failed to
tell his side of the story to the police.

The decision of the court of appeals in the instant
case squarely conflicts with the analysis of this Court
in Raffel v. United States, supra, and affirmance in
the case at bar would, we submit, require the Court
to overrule Raffel or confine that precedent to its spe-
cifie facts. In Raffel this Court held that it was per-
missible to cross-examine a defendant as to his reasons
for failing to take the stand at a prior trial, when his
purpose in testifying at the second trial was to rebut
a witness who testified at both trials. Raffel’s first
trial, in which he had failed to testify, resulted in
a mistrial; at his second trial on the same charge
the government presented the same witness who had
appeared at the first trial. This time, Raffel chose to
take the stand and rebut the witness’s testimony.
Although comment upon a defendant’s failure to take
the stand was prohibited by statute and judicial de-
cision (18 U.S.C. 3481; Wilson v. United States, 149
U.S. 60), the judge then asked Raffel questions that

20

required him to disclose that he had not testified at
the first trial and to explain why he had not done
so. The second trial resulted in conviction.

The Court, in an opinion by Justice Stone, deter-
mined that the Fifth Amendment privilege provides
no basis for excluding the defendant’s admission at
the second trial that he had failed to take the stand
at the previous trial beeause ‘‘I did not think there
was enough evidence to do it” (271 U.S. at 495, note).
The Court rejected the theory that the defendant’s
original immunity should be held to survive his ap-
pearance at the second trial (id. at 498-499) :

The only suggested basis for [extending the
immunity beyond the first trial is the] pres-
sure on the accused to take the stand on the
first trial for fear of the consequences of his si-
lence in the event of a second * * *. [But
e}ven if, on his first trial, he were to weigh the
consequences of his failure to testify * * * in
the light of what might occur on a second trial,
it would require delicate balances to enable him
to say that the rule of partial immunity would
make his burden less onerous than the rule that
he may remain silent, or at his option, testify
fully, explaining his previous silence. We are
unable to see that the rule that if he testifies,
he must testify fully, adds in any substantive
manner to the inescapable embarrassment
which the accused must experience in deter-
mining whether he shall testify or not.

Once the defendant takes the stand at the second
trial, therefore, he effectively waives his immunity

—

21

retroactively as to both trials, since “[w]e can discern
nothing in the policy of the law against self-incrimi-
nation which would require the extension of the im-
munity to any trial or to any tribunal other than
that in which the defendant preserves it by refusing
to testify.” 271 U.S. at 499.

If a defendant under such circumstances waives
his Fifth Amendment privilege respecting inquiry
into his failure to testify at a prior trial, it follows
that a defendant who takes the stand at his trial
also waives any Fifth Amendment privilege he may
have relating to his silence during police interroga-
tion. Like Raffel’s choice not to testify at his first
trial, respondent in his encounter with the police
chose not to tell them where he obtained the money
found on his person. We submit that his omission,
like Raffel’s, can properly be revealed to the jury to
aid them in assessing his credibility. Any other rule
unacceptably enhances the prospect that jury verdicts
will be based upon fabricated accounts not adequately
tested by cross-examination.°

® Stewart v. United States, 366 U.S. 1, cited by the majority
below, is not inconsistent with Raffel. In Stewart, a defendant
who pleaded not guilty by reason of insanity took the stand
and made various unintelligible statements. During cross-
examination the prosecutor elicited the fact that the defendant
had not testified during two previous trials, which had resulted
in convictions that were reversed on appeal. In ruling this
cross-examination improper, the Court noted that neither Raffel
nor Grunewald was applicable, since the cross-examination in
Stewart sought to discredit the claim of insanity rather than
to impeach the defendant's testimony.

568-620—75——4

22

B. Neither Griffin nor Miranda requires the rsult
reached by the court of appeals

Neither Griffin v. California, supra, nor Miranla v.
Arizona, 384 U.S. 436, both relied upon by the mijor-
ity below, is inconsistent with this analysis. At nost,
those cases express the proposition that a defenlant
may, in accord with his Fifth Amendment priviege,
remain silent without his silence being used aginst
him as evidence of guilt. But that proposition is ‘ully
consonant with use of a defendant’s silence as evi-
dence of his prevarication on the witness stand.

1. The defendant in Griffin was convicted of first
degree murder after a jury trial in which he chose not
to take the stand in his own defense. The trial @urt
instructed the jury that, while the defendant Ind a
constitutional right not to testify, and his failme to
deny or explain incriminating circumstances of which
he had knowledge did not create a presumption of
guilt or relieve the prosecution of any of its burden
of proof, the jury could take defendant’s failure to
testify as to such evidence into consideration ‘‘as tend-
ing to indicate the truth of such evidence and as in-
dicating that among the inferences that may be rea-
sonably drawn therefrom those unfavorable to the
defendant are the more probable’’ (380 U.S. at 610).
In closing argument, moreover, the prosecution made
several allusions to the defendants’ failure to deny or
explain incriminating circumstances. On those facts,
the Court reversed Griffin’s conviction, holding that
such comments to the jury about a defendant’s fail-
ure to testify violated the defendant’s Fifth Amend-
ment privilege.

‘B
-» The ‘Court in Griffin was concerned about the direct
use of a defendant’s decision not to testify (which was
‘undeniably an invocation of his privilege against self-
‘incrimination) as affirmative evidence of guilt. “What
‘the jury may infer, given no help from the court, is
one thing. What it may infer when the court solem-
-nizes the silence of the accused into evidence against
him is quite another.” 380 U.S, at 614 (emphasis
added). The Court neither said nor implied that the
same rule would apply to evidence used to impeach a
defendant’s trial testimony, nor did the Court men-
‘tion Raffel, supra, which permits comment upon a
defendant’s failure to take the stand at a previous
trial for the purpose of impeaching his testimony at
a subsequent trial. Indeed, it seems clear that the
decision in Griffin did not call into question the hold-
ing in Raffel, since at the time Raffel was decided it
had long been the rule in federal courts that no com-
ment could be made upon a defendant’s failure to
take the stand. See Wilson v. United States, supra;
18 U.S.C. 3481.”

Moreover, the situation in Griffin presented a prob-
lem that is absent in circumstances such as Raffel or
the instant case. Under the approach followed by the
California courts in Griffin, the jury was expressly
encouraged to infer that unexplained incriminating
circumstances were true, and the defendant, since he
did not testify, had no opportunity to rebut the infer-

The Court has specifically reserved the related question
whether an accused is constitutionally entitled to have the jury
instructed that his silence must be disregarded. (Griffin, supra,
380 U.S. at 615, n. 6. See also Bruno v. United States, 308 U.S.
287, 292.

‘4

ionee. As a reguit of invoking the privilege in Raffel
{and of remaining silent in the instant case), how-
ver, the defendant at most risked being eatled upon
to. explam why he previously failed to take the stand
or provide information. The jury may disbelieve his
explanation, and their disbelief will cast doubt upon
the veracity of his present testimony. On the other
hand, the jury may be sufficiently satisfied with the
explanation that any unfavorable inference otherwise
flowing from his previous silence is effectively re-
butted. Thus, in Raffel, as in the instant case but un-
like Griffin, the defendant had an opportunity to
eliminate any unfavorable inference resulting from
his silence, and the accuracy of the inference was
“subject to the normal testing process of an adver-
sary trial.” Michigan v. Tucker, 417 U.S. 433, 449.
2. The court of appeals’ reliance on Griffin was
predicated on its conclusion that respondent, like
Griffin, was ‘‘exercis[ing] his constitutional right to
remain silent” and that the cross-examination consti-
tuted an attempt to penalize him for assertion of this
right (Pet. App. A, p. 10A). The court of appeals did
not independently analyze the validity of its focal
postulate that respondent was exercising a “constitu-
tional right” when he remained silent and was im-
permissibly penalized therefor when cross-examined,
but simply relied upon the following dictum con-
tained in a footnote in Miranda (384 U.S. at 468, n.
37):
In accord with our decision today, it is im-
permissible to penalize an individual for ex-
ercising his Fifth Amendment privilege when

he is under police custodial interrogation. The
prosecution may not, therefore, use at trial the
fact that he stood mute or claimed his privilege
in the face of accusation.

In considering whether this dictum should now be
elevated into a constitutional holding, the cireum-
stances of its utterance merit attention: (1) None
of the cases before the Court in the Miranda group
involved defendants who had stood silent or whose
silence had been used in any manner against them
at trial; (2) since the thrust of the Court’s rationale
in Miranda focused upon the inherently coercive
effects found by the Court to accompany custodial in-
terrogation, the characterization of an arrestee’s vol-
untary silence as an exercise of the Fifth Amendment
privilege was logically unrelated to the theme of co-
ercion that dominated the Court’s opinion; and (3)
the quoted statement contained no explication of the
basis for the conclusion it contained, and the case law
cited in support of the conclusion (by “‘ef.”), inelud-
ing Griffin, dealt with quite distinct situations.

In our view, the Fifth Amendment privilege does
not confer any per se ‘‘right to remain silent’’ as a
personal entitlement that the government is affirm-
atively obliged to fulfill. The obligation that the Fifth
Amendment privilege imposes upon the government is
a negative one to avoid compulsion, and the correla-
tive right is to be free from being compelled to speak.
Cf. Michigan v. Tucker, supra. The right to be free
from improper compulsion is by its nature not a right
that the individual exercises but, rather, one that he

26

enjoys." Accordingly, it was not only too facile, but
also erroneous, to characterize the cross-examination
to which respondent was here subjected as a penalty
for the exercise of a right.”

But even putting to one side these conceptual ob-
jections to the Miranda dictum and accepting it as a
correct statement of the governing rule, it is properly
understood as a bar to use of a defendant’s silence
during interrogation only in the government’s case-in-
chief. Following the logic of Harris and Raffel, and
the principles of impeachment and Fifth Amendment
waiver enunciated therein, the dictum would not pro-
hibit asking a defendant on cross-examination, for

11 By contrast, the ordinary application of the self-incrimina-
tion provision requires an affirmative assertion of a colorable
claim that the information sought of the individual may tend
to incriminate him. See, e.g., United States v. Kordel, 397 U.S.
1, 10; Vajtauer v. Commissioner of Immigration, 273 U.S. 103,
113.

#2 Theoretically, a similar analysis might be adduced in the
case of the non-testifying defendant. However, the treatment of
such a defendant's failure to take the stand as an “invocation”
of the privilege against self-incrimination is firmly rooted in
our law and reflects a reasonable presumption that such a de-
fendant, if called to the stand, would invoke the privilege (he
is, of course, not permitted to be called, because of the risk of
impermissible prejudice if he is forced to claim possible self-
incrimination before the jury). Whatever may be said of the
exercise-of-right/penalty analysis in the Griffin context, how-
ever, we believe it would be inappropriate to extend it to the
instant circumstances. Moreover, the situations are distinguish-
able insofar as the practice of comment and inference on a
defendant’s failure to take the stand entails a perceptibly
greater hazard of prejudice flowing from the act of exercising
the right (rather than simply the reasonable inferences arising
from silence) than is present in the instant situation.

——

27

the purpose of impeaching his trial testimony and
eliciting his ‘‘whole’’ story, why he remained silent
at the time of arrest.

II. TESTING OF A DEFENDANT’S CREDIBILITY BY REFERENCE
TO HIS PRIOR FAILURE TO GIVE HIS STORY TO THE POLICE
NEITHER COERCES NOR IMPERMISSIBLY BURDENS HIS
CHOICE TO REMAIN SILENT BEFORE THE POLICE, NOR
Is IT UNFAIR

The court of appeals’ conclusory assertion that use
of an accused’s silence at police interrogation to im-
peach his trial testimony is tantamount to a penalty
upon the exercise of his Fifth Amendment privilege
may also rest upon the unarticulated premise that this
consequence impermissibly burdens the choice to re-
main silent. If this was the premise, however, it is
difficult to see where the impermissible burden arises.
In the first place, it seems to us speculative and even
unlikely as an empirical matter that a defendant will
be deterred from remaining silent during police ques-

tioning by the mere possibility that, should he testify

at trial, he then might be called upon to explain why
he had not earlier offered his story to the authorities,
and that the jury then might be dissatisfied with his
explanation. Such an adverse consequence is so remote
from the circumstance of police interrogation and—
assuming the defendant has a reasonable explanation
for why he chooses to remain silent—so unlikely, that
it cannot be assumed to have a real deterrent impact
upon the decision to remain silent during police

interrogation.

28

But even if it had some such effect, it does not fol-
low that this represents an impermissible burden on
the exercise of a constitutional right; rather, we sub-
mit that it represents a proper consequence of the de-
fendant’s election to withhold any explanation of sus-
picious circumstances from the police, while choosing
to provide one at trial. In the following discussion we
show that this consequence is considerably less onerous
than many other constitutionally sanctioned conse-
quences of choosing to remain silent, and that it does
not improperly compel an accused to speak against his
will. We next show that there is nothing ‘‘unfair” in
telling an accused that he may remain silent without
telling him of all possible adverse consequences that
could flow from his decision to remain silent. Finally,
we show that use of an accused’s silence at the time
of arrest to impeach his trial testimony does not jeop-
ardize any of the values that the Fifth Amendment
privilege is thought to protect.

A. The possibility of impeachment of a defendant’s
testimony by reference to his prior silence ts a far
less severe detriment than other disadvantages that
this Court has held may constitutionally attach to
exercise of the privilege against self-incrimination,
nor does tt constitute an impermissible compulsion
to answer police questions.

Even assuming that the Fifth Amendment privilege
is the source of an arrestee’s right to silence and that
the privilege is fulfilled only when he is guaranteed
the right ‘‘to remain silent unless he chooses to speak
in the unfettered exercise of his own will,’’ Miranda

a)

Fs APiggnt, aupra, 384.,11,S, at 460; Malloy. ¥, Hegan,

3781.8. 1, 8 it does not. follow that, in order, to be

“unfettered,’’ the choice must be without consequence.

On the contrary, ‘‘nothing in the logic or purposes of

the. privilege demands that all consequences. which
may. result from a witness’ silence be forbidden mere-

ly because that silence is privileged. The validity of a
consequence depends both upon the hazards, if any, it
presents to the integrity of the privilege and upon the
urgency of the public interests it is designed to pro-
tect.” Garrity v. New Jersey, 385 U.S. 493, 507 (Har-
lan, J., dissenting).

J. We have already adverted to the ‘‘strong interest
under any system of justice of making available to the
trier of fact all concededly relevant and trustworthy
evidence which either party seeks to adduce.’’ Mich-
igan v. Tucker, supra, 417 U.S, at 450. Manifestly,
this includes knowledge of the defendant’s failure to
explain seemingly incriminating circumstances to the
police at a time when the accuracy of the explanation
could have been independently verified. On the other
hand, from the standpoint of the accused, the pos-
sible adverse consequence at trial of remaining silent
at police interrogation represents no hazard to the in-
tegrity of the privilege. Indeed, the consequence is
nothing more than a nominal strategic disadvantage
at trial: the possibility that, if he provides an alibi
or exculpatory testimony at trial, he may be called
upon to explain why he failed to offer information to
the police, and the jury might be dissatisfied with his
explanation.

30

"Dhis consequence simply does not amoutit to “ooni-
‘pulsion” in the sense relevant for bringing ‘the protec-
‘tion of the self-incrimination provision into play—é:e.,
the kind of circumstance “‘likely to exert such pressure
upon an individual as to disable him from making a
free and rational choice,’’ Garrity v. New Jersey,
supra, 385 U.S. at 497, It does not remotely resemble
“the lurid realities which lay behind the enactment
of the Fifth Amendment * * *, the pain of incarcer-
ation, banishment, or mutilation,’”’ Griffin v. Califor-
nia, supra, 380 U.S. at 620 (Stewart, J., dissenting).
It is a far cry from such ‘“‘penalties” for silence as
third-degree torture, Brown v. Mississippi, 297 U.S.
278; prolonged isolation from family or friends in a
hostile setting, Gallegos v. Colorado, 370 U.S. 49; phys-
ical and mental exhaustion from subjection to seem-
ingly endless interrogation, Watts v. Indiana, 338
U.S. 49; loss of job, Garrity v. New Jersey, supra; or
subjection to the kinds of police interrogation prac-
tices described in Miranda itself,

2. In fact, the possibility of such a strategic dis-
advantage at trial following upon silence during police
interrogation is far less grave than many similar
strategic disadvantages permissibly following upon in-
vocation of the privilege in other circumstances. “The
criminal process, like the rest of the legal system, is
replete with situations requiring ‘the making of diffi-
cult judgments’ as to which course to follow. * * *
The threshold question is whether compelling the elec-
tion impairs to an appreciable extent any of the poli-

31

cies behind the rights involved.’’ McGautha v. Califor-
nia, 402 U.S. 183, 213.

In McGautha, this Court faced a Fifth Amendment
challenge arising from the dilemma confronting a de-
fendant in a capital case under a state unitary trial
procedure, in which guilt and sentence were decided
by the jury in a single proceeding. The petitioner
alleged, among other things, that his decision to exer-
cise his constitutional right to avoid self-incrimination
by not taking the stand at trial was unconsitutionally
penalized by the fact that, by failing to take the stand,
he lost his opportunity to be heard by the jury in miti-
gation of sentence and therefore suffered an increased
risk of being sentenced to death. Present also was the
suggestion that other defendants facing the dilemma
would feel compelled to waive their right not to testify
on guilt or innocence in order to secure an oppor-
tunity to testify in mitigation of sentence. After assay-
ing the various tactical choices facing an accused
during and before a criminal trial, Justice Harlan
concluded in his opinion for the court that the pres-
sures that might cause similarly situated defendants
to furnish arguably testimonial or incriminating infor-
mation were no different from other pressures licitly
generated by the innate complexity of criminal litiga-
tion (402 U.S. at 216-217):

We are thus constrained to reject the sugges-
tion that a desire to speak to one’s sentencer
unlawfully compels a defendanc in a single-
verdict capital case to incriminate himself, un-
less there is something which serves to distin-

32

guish sentencing—or at least capital sentenc-
ing—from the situations given above. Such a
distinguishing factor can only be the peculiar
poignancy of the position of a man whose life
is at stake, coupled with the imponderables of
the decision which the jury is called upon to
make. We do not think that the fact that a de-
fendant’s sentence, rather than his guilt, is at
issue creates a constitutionally sufficient differ-
ence from the sorts of situations we have

described.

The Court’s rationale, realistically taking account
of the accused’s inherent need to make tactical judg-
ments about the conduct of his defense to criminal
charges against him, would seem to apply with equal
or greater force to the instant case. Just as a defend-
ant’s decision to waive his Fifth Amendment privilege
for the purpose of mitigating his sentence is not con-
stitutionally distinguishable from his decision to waive
his privilege for the purpose of testifying in
his own behalf, so too an arrestee’s decision to ‘‘waive
his privilege” at police interrogation for the far less
drastic purpose of avoiding impeachment when he
testifies at trial is constitutionally indistinguishable
from his decision to waive his privilege at trial.
Indeed, it is also procedurally indistinguishable, since
an accused at police interrogation will feel induced to
waive his privilege for this reason, if at all, only to
the extent that he actually plans to waive his privilege
at trial. Cf. Brady v. United States, 397 U.S. 742;
McMann Vv. Richardson, 397 U.S. 759; Parker v. North
Carolina, 397 U.S. 790.

88
_ An arrestee’s evaluation of his options in deciding

whether to speak or remain silent in response to

police questions will depend upon many factors, such
as his pereeption of the amount of information that

‘the police already have obtained; his assessment of

the likelihood that, should he cooperate with the
police, he will be able to allay their suspicion and
avoid subjection to criminal charges; or his expecta-
tion that by cooperation he may obtain more lenient
treatment from the court. The decision whether to
give exculpatory information is likely to be governed
by the relative ease with which the authorities eould
verify the information and the likely impact of the
information on their assessment of his guilt or in-
nocence. If a relatively simple explanation of sus-
picious circumstances can lead to an arrestee’s quick
release from the criminal process, it seems to us likely
as an empirical matter that he would offer it.
There is, in any event, no basis for concluding that
one additional factor in the caleulus—the likelihood
that if the exculpatory information is not offered to
the police, and the arrestee is prosecuted, and he
decides at trial to take the stand in his own behalf,
he may then be required to explain his prior silence—
would materially influence the decision to speak
or remain silent, let alone that it would be so weighty
as to overwhelm his ability to make a rational and
voluntary choice.”

In considering the question whether our position threatens
to impose a constitutionally intolerable burden on the arrestee’s
decision to speak or remain silent, it is useful to distinguish
between those whe are guilty of the offense of which they are

34

3. Williams v. Florida, 399 U.S. 78, like McGautha,
dealt with and sustained a procedure that imposed
substantial adverse consequences on an exercise of the
privilege. The Court in Williams upheld a notice-of-
alibi statute requiring that a defendant who planned
to present an alibi defense at trial provide the prose-

suspected and those who are not. While we do not suggest that
the guilty have any less right to be free from governmental
compulsion to speak than the innocent, we do submit that their
decision to stand mute is likely to flow from the fact that they
have no satisfactory explanation to tender; they are thus
unlikely to feel compelled to provide an explanation to the
police by the prospect that a fabricated story presented at trial
will be subject to impeachment in this manner.

Many innocent persons who can offer an explanation for
seemingly incriminating circumstances will, of course, elect to do
so in the hope that such action will bring about a speedy and
favorable termination of police suspicions. Such persons, like
the guilty, clearly would be unaffected in their election to speak
by questions of possible future impeachment, since their choice
is to speak in any event.

That leaves the group of arrestees who, although innocent
and/or possessing a valid exculpatory explanation of seemingly

suspicious circumstances, choose not to respond to police ques- _

tioning—perhaps from fear or distrust of the police, perhaps
from instinctive caution, timidity, or belligerence, perhaps in
adherence to advice of counsel. Only as to this group could the
possible future consequences of failure to respond to police
inquiry materially affect the decision whether or not to speak.
But these individuals already face immediate and substantial
“compulsive” considerations, such as the prospect that their
silence will result in the bringing of criminal charges against
them. If they find the compulsion of such considerations resist-
ible, it is hard to imagine that the remote and speculative
possibility of adverse consequences at trial will provide mean-
ingful compulsion to speak.

In short, it will as an empirical matter be the rare case
indeed in which the possibility of future impeachment will
actually operate to induce an arrestee to speak.

eution with the names of alibi witnesses before trial.
It concluded that the statute does not unconstitution-
ally burden the defendant’s Fifth Amendment priv-
ilege, even though failure to comply could result in
exclusion of the alibi evidence at trial. The defendant
in that case complied with the notice-of-alibi rule, and
the state prosecutor used a deposition of the defend-
ant’s alibi witness to impeach the witness’s testimony.
The defendant claimed on appeal that his privilege
against self-incrimination was thereby violated, since
he had been required to furnish the State with infor-
mation useful in convicting him, under penalty of
being prohibited from presenting his alibi witness.
This Court disagreed (399 U.S. at 83-85, emphasis
supplied) :

The defendant in a criminal trial is fre-
quently forced to testify himself * * * in an
effort to reduce the risk of conviction. * * *
That the defendant faces such a dilemma de-
manding a choice between complete silence and
presenting a defense has never been thought an
invasion of the privilege against self-incrimi-
nation.

* * * * is

At most, the rule only compelled petitioner to
accelerate the timing of his disclosure, fore-
ing him to divulge at an earlier date informa-
tion that the petitioner from the beginning
planned to divulge at trial. Nothing in the Fifth
Amendment privilege entitles a defendant as a
matter of constitutional right to await the end
of the State’s case before announcing the nature
of his defense * * *.

Although pre-trial silence would of course have sub-
jected Williams to the significant strategic disadvari-
tage at trial of being barred from presenting an alibi
defense, this consequence was not considered to impose
an impermissible burden upon his election whether te
remain silent.

The same logic would seem to compel a reversal in
the instant case. If in consequence of maintaining
silence prior to trial a defendant may be barred atto-
gether from presenting his alibi defense during trial,
surely it is permissible—and far less burdensome—to
attach as a consequence of a defendant’s silence in re-
sponse to police questions the possibility that he may
be asked to explain his silence should he subsequently
decide to offer an alibi or exculpatory testimony dur-
ing trial. We reiterate in this connection that his fail-
ure to present his story to the police does not bar him
from presenting his story to the jury, as silence would
have in Williams: it simply entitles the jury to know,
when he presents it to them, why he failed to give the
information to the authorities at the time of his arrest.
At most, an arrestee who plans to take the stand and
tell his story at trial, if concerned that he might then
be asked to explain his previous silence, may be some-
what more likely to “accelerate the timing of bis dis-
closure’ than otherwise. But this consideration is
hardly tantamount to an unconstitutional burden upon
his choice to remain silent.

Nor does this consequence of choosing to remain
silent at police interrogation unconstitutionally bur-
den a defendant’s decision to take the stand at trial.

37

A defendant who contemplates testifying in his own
hehalf is faeed with many analogous—indeed, con-
siderably more burdensome—disadvantages. Once he
takes the stand, he cannot then claim the privilege
against cross-examination on matters reasonably re-
lated to the subject matter of his direct examination,
see, ¢.9., Brown v. United States, 356 U.S. 148, Fitz-
patrick v. United States, 178 U.S, 304, 314-316; he
may also be impeached by proof of prior convictions,
Spencer V. Texas, supra, 385 U.S. at 561; and if his
motion for acquittal at the close of the government’s
ease is denied, he risks bolstering the government’s
ease sufficiently to support an otherwise unjustifiable
verdict of guilty if he puts on a defense, e.g., United
States v. Calderon, 348 U.S. 160. 164.

In sum, whatever the inducement that might be
felt by an arrestee to respond to police questioning
because he otherwise might be asked to explain at
trial why he had not provided the same explanation
to the police (or that might be felt by a defendant at
trial to forego his opportunity to take the stand for
the same reason), such inducement “does not derive
from any coercion of the State, instead it arises from
the desire of the accused to act in his own enlightened
self-interest.” Segura v. Patterson, 402 F. 2d 249,
253 (C.A. 10). An arrestee may feel slightly more
induced to provide the police with exeulpatory infor-
mation than he otherwise would, or a defendant
slightly more deterred from taking the stand, but
only marginally so, and only to the extent that one
course of action thereby beeomes tactically more ad-
vantageous than another,

B. It is not “‘unfair’’ to advise an accused that he has
a right to remain silent and then use his silence to
impeach his trial testimony
Contrary to the assertion of the court of appeals,

we see nothing “‘unfair’’ about advising an arrestee

that he has a “right to remain silent” and then using
his silence to impeach his trial testimony although
he had not been warned of this possible development.

The fact that future impeachment use may result

from silence does not make it untruthful to advise a

suspect that he has a right to choose silence. An ac-

cused is not advised that his choice to remain siient
cannot be used against him.

Moreover, as has already been indicated, a defend-
ant faces many tactical disadvantages from choosing
to remain silent at different stages of the criminal
process, and there is no warrant for assuming that
these choices are uninformed simply because all the
possibly disadvantageous consequences stemming
therefrom are not spelled out at every juncture. Cf.
Schneckloth v. Bustamonte, 412 U.S. 218, 226. An arc-
eused who has an innocent explanation for otherwise
incriminating circumstances certainly can be assumed
to know that the consequence of choosing silence dur-
ing police questioning is the rather drastic one of
facing potential indictment, possible pretrial detention
or bail, and trial.

The reason for requiring that an accused be told
that he has a “right to remain silent” is to counteract
what are thought to be coercive aspects of incom-
municado police questioning. Miranda v. Arizona;
supra, 384 U.S. at 457, 458. So long as the interroga-

tion is fair and noncoercive, therefore, the accused
presumably enjoys the “right” that he has been prom-
ised, and there is nothing misleading about advising
him of this choice. Thus, in the instant case, there can
be no question that the goals of the Miranda decision
were served when respondent was given the election
between speaking voluntarily and voluntarily remain-
ing silent.

To the extent that the court of appeals discerred
unfairness because of a surmise that respondent may
have decided to remain silent in reliance on an implied
promise that his silence would not be used against him
at trial, it presupposes that the decision to remain
silent must be as carefully circumscribed with assur-
ances that it be “informed” as is the decision to speak.
But this is tantamount to a requirement that the
government provide warnings about all the possibly
adverse consequences that may flow from invocation
of constitutional rights—a requirement that has no
logical foundation in the recognized need to assure that
waiver of constitutional rights be knowledgeable. To
assume that an accused has been somehow tricked into
invoking his “constitutional privilege” because he may
not have been aware of certain disadvantages that ac-
company its invocation is a peculiar notion that has no
analog in the law of voluntary waiver or entrapment.

“If this were indeed the ground of the court’s decision, it
implies that the cross-examination at issue would pass constitu-
tional muster had respondent been apprised at police interroga-
tion that, should he decide to take the stand at trial, his prior
silence could then be used to impeach his credibility. While we
have no objection to modifying the warnings in the future to pro-
vide such notice if this Court deems such modification necessary
to assure fairness to arrestees, it seems to us that the addition

40)

_ Johnson v. United States, 318 U.S. 189, 197, cited

by the majority below, dealt with a defendant’s deci-
sion whether to invoke the privilege at trial during
the eourse of his trial testimony, without first being
warned by the court that it would allow the prosecu-
tion to comment upon any claim of privilege as evi-
dence of the truth of unexplained incriminating facts.
This Court held that it would be unfair to allow the
jury to consider the fact that the accused invoked the
privilege under these cireumstances, where “that action
may be said to affect materially the aceused’s choice
of claiming or waiving the privilege and results in
prejudice.” Ibid.; emphasis added. Use of an ar-
restee’s silence at police questioning for the limited
purpose of impeaching his trial testimony, however,
could not be said to “‘materially affect” his choice of
claiming or waiving the privilege.

C. The constitutional values and policies reflected in
the privilege against self-incrimination were not im-
paired by the cross-exramination of respondent

The values thought to be reflected by the privilege
against self-incrimination were comprehensively eata-
logued by the Court in Murphy v. Waterfront Com-
mission, 378 U.S. 52, 55:

The privilege against self-incrimination * * *
reflects many of our fundamental values and
most noble aspirations: our unwillingness to
subject those suspected of crime to the cruel
trilemma of self-accusation, perjury or con-
tempt; our preference for an accusatorial rath-

of such a statement might tend to confuse an arrestee about his
constitutional rights and make it more difficult for him to
understand the Miranda warnings.

41

er than inquisitorial system of criminal justice;
our fear that self-incriminating statements will
be elicited by inhumane treatment or abuses;
our sense of fair play [and] * * * respect for the
inviolability of the human personality and of
the right of each individual ‘‘to a private en-
clave where he may lead a private life,” United
States v. Grunewald, 233 F. 2d 556, 581-582
(Frank, J., dissenting), rev’d 353 U.S. 391; our
distrust of self-deprecatory statements; and our
realization that the privilege, while sometimes
“a shelter for the guilty,” is often “a protec-
tion to the innocent.” Quinn v. United States,
349 U.S. 155, 162 [footnote omitted].

The cross-examination in the case at bar did not
undermine these values.

a. A suspect whose failure to respond to police ques-
tions may be used to impeach his trial testimony is not
exposed to the ‘‘cruel trilemma of self-accusation, per-
jury, or contempt.’’ Respondent was free to make a
false statement or to remain silent (as he in fact did),
without any fear of invoking at least two of the penal-
ties of the ‘‘cruel trilemma”—perjury and contempt.

b. Neither would the rule for which we contend sub-
vert the preference for an accusatorial systern of crim-
inal justice. Confessions, so long as they are volun-
tarily made, have a recognized and valid place in our
accusatorial system. Since, for the reasons we have
previously discussed, the possible use of silence for
impeachment dees not impair the voluntary character
(in the constitutionally relevant sense) of the arrest-
ee’s election to speak or stand mute, the rule would
not perceptibly alter the existing character of our ac-

cusatorial system.

42

e. Nor would such use increase the likelihood of in-
humane treatment. Since it is an arrestee’s silence,
rather than any statements elicited by the police, that
is used to discredit his trial testimony, the police have
no incentive to violate the law and elicit statements
coercively—an arguably ‘‘speculative possibility” of
the rule enunciated in Harris, supra. Indeed, if such
use of silence during custodial interrogation modifies
police behavior in any direction, its likely tendency is
to preserve an accused’s right to remain silent by di-
minishing the determination of the police to procure
a statement.

d. Nor are values of privacy jeopardized by such
use of an accused’s silence during police interrogation
to impeach his trial testimony. Unlike a witness be-
fore a grand jury or legislative committee, whose ap-
pearance is not necessarily predicated on probable
cause, a suspect lawfully arrested by the police has
already satisfied the threshold requirement of probable
cause. Moreover, by the time the prosecution makes
reference to his silence, the individual has already
gone to trial and has chosen to testify in his own de-
fense. Indeed, he will choose to reveal personal in-
formation to the police, if at all, only to the extent
that he plans to testify at trial and in so doing reveal
the same personal information to the jury. Cf. Wil-
liams v. Florida, supra. This inducement to reveal
personal information is therefore no more an assault
on his privacy than is necessarily entailed by his own
tactical choices within the legitimate criminal justice
process.

43

e. Finally, this case implicates no concerns about
the trustworthiness of “self-deprecatory statements.’’
Miranda, supra, 384 U.S. at 455, n. 24, and 470; see
8 Wigmore, Evidence, § 2251 (McNaughton rev. ed.
1961). At most, an accused may decide that it is better
to reveal his exculpatory evidence earlier (at police
interrogation) rather than later (at trial). In no
event, however, will the mere possibility that his si-
lence at police interrogation might be subsequently
used to discredit his testimony induce him to make
unreliable self-deprecatory statements.

Under these circumstances~.given that the only
burden upon invocation of the privilege is a strategic
disadvantage at trial of the sort inherent in our ad-
versary system, and given the absence of any sig-
nificant encroachment upon the policies or values re-
flected by the privilege—the decision below has failed
to overcome the burden of justifying the exclusion of
relevant evidence enhancing the jury’s ability to as-
sess the credibility of respondent’s testimony. As
Mr. Justice Frankfurter observed in Nardone v.
United States, 308 U.S. 338, 340, “[a]ny claim for
the exclusion of evidence logically relevant in crim-
inal prosecutions is heavily handicapped. It must be
justified by an over-riding public policy expressed in
the Constitution or the law of the land.’’ No such
justification can be demonstrated here.

Ill. THE JURY IS COMPETENT TO GAUGE THE PROBATIVE
WEIGHT OF SUCH IMPEACHMENT EVIDENCE

So far, our argument has focused on the proposi-
tion that the Fifth Amendment privilege poses no

44

necessary bar to cross-examination of a defendant
who has given exculpatory testimony at trial as to
why he failed to offer such information at the time
of his arrest. There remains the issue whether, in
these circumstances, the danger of impermissibie use
of this evidence so far outweighs its probative value
that the jury should be denied an opportunity to
consider it.” We submit that the risk of prejudice is
dwarfed by the legitimate desire to protect against
false and fabricated defenses and the concomitant
need to subject the testimony of defendants to thor-
ough cross-examination.

1. Common sense and human experience draw one
inevitably to the conclusion that a suspect’s failure
to provide an explanation for seemingly incriminating
circumstances at the time of arrest is probative on the
issue of the veracity of the explanation of those eir-
cumstances offered at trial. By “probative” we do
not, of course, mean that an arrestee’s unwillingness
to offer the police an explanation for seemingly in-
criminating circumstances conclusively establishes the
falsity of any explanation tendered at trial. Doubtless
there are times when a suspect has an explanation

1° Even a rule so based would appear to have constitutional
underpinnings, although it is far from clear whether this con-
cern is grounded on the privilege against compelled self-
incrimination or the due process clause. This Court in @rune-
wald, supra, did not state the constitutional source of its weigh-
ing of probative value against prejudicial impact in that case.
It simply noted that, while such considerations are “usually
within the discretion of the trial judge * * * where such evidenti-
ary matter has grave constitutional overtones, as it does here, we
fee! justified in exercising this Court’s supervisory control to
pass on such a question.” 353 U.S. 391, 423-424.

45

that would neutralize a seemingly incriminating cir-
eumstance but is nevertheless unwilling to provide
it to the police at the time of arrest: e.g., he may have
been advised by counsel or may believe that he should
never volunteer any statement to the police in such
circumstances before reviewing the situation with a
lawyer; he may fear that the explanation, although
neutralizing one piece of evidence, will lead police to
other evidence incriminating him in the offense under
investigation or other offenses; his response to the
situation may be dominated by fear or hostility im-
pelling him to be silent. Nevertheless, it seems to us
sufficiently likely as an empirical matter that a sus-
pect will often provide the police with a genuinely
innocent explanation that may lead to his quick
release from the criminal process, if he has one, even
after he is warned that he need not speak a word.
This is particularly so because the opportunity to
obtain prompt, independent verification of the ex-
planation and to obviate suspicions of fabrication is
likely to be evanescent.

We do not contend that the silence of a suspect,
when questioned by the police after having been
expressly told of his right to remain silent, may
properly be treated or even considered as a tacit
admission of guilt, since knowledge of the right to
stand silent is a sufficiently probative explanation for
having failed to admit incriminating facts. But it does
not follow that the right to invoke the privilege pro-
vides a sufficiently probative explanation for a failure
to provide exculpatory information. Indeed, the fact

46

that a suspect is not required to speak during police
interrogation does not mean that there is never any
advantage to be gleaned from speaking. If the police
have erred in arresting a suspect, and he can provide
them with information that reveals their error to
them, it is likely to appear and to be more advan-
tageous for him to speak than to hold his tongue.
While it is undoubtedly helpful for an accused to
know that he need not speak if he does not wish to do
so, the Miranda warnings were never intended to
prevent an arrestee from providing information that
he believes will aid the police in discovering that he is
innocent. Nor were they intended to promote the
belief that silence is always the best course.

There is no reason why the jury should be shielded
from this normally probative information, nor any
reason to presume that the jury will be unable to
assess it properly and give it such probative weight as
it deserves under the circumstances in assessing the
truthfulness of a defendant’s trial testimony. The
words of Mr. Justice Frankfurter, coneurring in
Adamson Y. California, 332 U.S. 46, 60-61, are espe-
cially pertinent here:

Sensible and just-minded men, in impor-
tant affairs of life, deem it significant that
® man remains silent when confronted with
serious and responsible evidence against him-
self which it is within his power to contradict.
The notion that to allow jurors to do that which
sensible and rightminded men do every day
violates the ‘‘immutable principles of justice”’
as conceived by a civilized society is to trivial-

47

ize the importance of “due process.” * * *
To deny that the jury can be trusted to make
such discrimination [7.e., assess the reasons for
silence] is to show little confidence in the jury
system.

The probative weight to be accorded any particular
instance of silence will, of course, depend upon factors
such as the relative ease of providing the information
and the ease with which the police can discover its
accuracy (we would expect, for example, that an
accused would promptly revcal that he is not the
person whom the police say they are seeking). It may
also vary with the personal characteristics of the
defendant—his age, experience in the criminal process,
or personality--not to mention his demeanor while
explaining the reasons for prior silence. But these are
the kinds of factors traditionally entrusted to the jury
in determining the credibility of a witness.

By the same token, there is no reason to suppose
that, in assessing the credibility of a defendant’s testi-
mony, the jury will give this evidence so much greater
probative weight than it deserves that he is impermis-
sibly prejudiced thereby (particularly when, as here,
the court provides an instruction cautioning the jury
that the defendant is not required to give any explana-
tion to the police). A defendant who is asked on
eross-examinatiom why he failed to give a similar
explanation to the police has an opportunity to inform
the jury of his motive for withholding the information,
and there is no justification for assuming that the jury
will not accord this secondary explanation its proper
weight. “The value of such testimony, as is always the

48

ease with cross-examination, must depend upon the na-
ture of the answers elicited ; and their weight is for the
jury.” Raffel, supra, 271 US. at 498.

Indeed, the jury is often called upon to assess the
credibility of a defendant’s testimony by reference to
evidence that may be deemed too prejudicial for use in
the prosecution’s case-in-chief, such as evidence of
prior convictions, Spencer v. Texas, supra, 385 U.S. at
561, and evidence of the defendant’s reputation for
mendacity or bad character when character has been
put in issue, 1 Wigmore, Evidence, §§ 58, 196 (Me-
Naughton rev. ed. 1961). Even assuming, therefore,
that the jury should be shielded from giving considera-
tion, as evidence of guilt, to the fact that a defendant
failed to give exculpatory evidence to the police, we
see no reason to shield the jury from giving consider-
ation to this circumstance as evidence bearing upon
the truthfulness of the defendant’s exculpatory testi-
mony at trial.

In any event, even if considerations of due process
might require that the jury be barred from consider-
ing such evidence in particular circumstances, where
the trial court determines that its probative value is
outweighed by its potentially prejudicial impact upon
the jury, the decision to prohibit such a line of cross-
examination should be within the discretion of the
trial court:

[MJjany hundreds of potential relevancy is-
sues passed before the trial judge. It is neither
desirable nor possible for this court to lay down
any general rule that will serve as a solution for
every issue, for it is a different question of ex-
perience and common sense in each instance.

49)

* * * The precedents in the area of relevancy
are of very limited value, and the trial judge
must have wide discretion on the innumerable
questions of relevancy before him. [State v.
Anderson, 253 S.C. 168, 182, 169 S.E. 2d 706,
712, rehearing denied, 397 U.S. 1031. See also
United States v. Ravich, 421 F. 2d 1196 (C.A.
2).]
See also ALI, Uniform Rules of Evidence, Rule 45;
Fed. R. Evid. 403. The Fifth Amendment privilege is
not so implicated, as a matter of course, that a per se
rule barring such cross-examination is either neces-
sary or desirable in order to avoid the possibility of
undue prejudice.

** This view is similar to that of the British Criminal Law
Revision Committee. In its report presented to Parliament in
1972, the Committee recommended that it should be “per-
missible for the jury or magistrates’ court to draw whatever
inferences are reasonable from the failure of the accused, when
interrogated, to mention a defense which he puts forward at
his trial.” Criminal Law Revision Committee, Eleventh Report,
Evidence (General) 16 (1972). Prior English law generally did
not permit comment on a defendant's prior silence. See /d. at 16-
17; Cross, Evidence, 180 (1967). Under the Committee's
recommendation, the suspect would retain the right to remain
silent, but if he did so, that fact might be introduced at trial.
It would be for the court or jury to determine if an adverse
inference should be drawn from the defendant's prior omission.
The Committee stated (at p. 21):

“In our opinion it is wrong that it should not be permissible
for the jury or magistrates’ court to draw whatever inferences
are reasonable from the failure of the accused, when interro-
gated, to mention a defense which he puts forward at his trial.
To forbid it seems to us to be contrary to common sense and,
without helping the innocent, to give an unnecessary advantage
to the guilty. Hardened criminals often take advantage of the
present rule to refuse to answer any questions at all, and this
may greatly hamper the police and even bring their investiga-
tions to a halt. Therefore the abolition of the restriction would
help justice. * * *”

50

2. We submit that the circumstances that led the
Court to bar the use of a defendant’s prior invocation
of the privilege before the grand jury as a means of
discrediting his trial testimony in Grunewald v. United
States, 353 U.S. 391, are readily distinguishable from,
and inapplicable to, the case at bar. Grunewald rested
on “the special circumstances” (id. at 425; Black, J.,
concurring) of a defendant whose invocation of the
privilege in that “particular grand-jury proceeding”
(id. at 423) was not at all inconsistent with his trial
testimony, but was instead likely under the particular
circumstances to have a prejudicial impact upon the
jury, as is evident from the Court's unwillingness in
that case to overrule Raffel and announce a new per se
rule of inadmissibility, as the four concurring Justices
would have done (id. at 426). The Court’s inquiry
proceeded no further than the threshold finding that
the probative value of the particular invocation at is-
sue was too small relative to its potential for prejudice
(id. at 424):

[I ]n this case the dangers of impermissible use
of this evidence far outweighed whatever ad-
vantage the Government might have derived
from it if properly used. If the jury here fol-
lowed the judge’s instructions, namely, that the
plea of the Fifth Amendment was relevant only
to credibility, then the weight to be given this
evidence was less than negligible, since, as we
have outlined above, there was no true incon-
sistency involved; it could therefore hardly have
affected the Government’s case seriously to ex-

clude the matter completely. On the other hand,
the danger that the jury made impermissible

51

use of the testimony by implicitly equating the
plea of the Fifth Amendment with guilt is, in
light of contemporary history, far from negli-
gible. Weighing these factors, therefore, we feel
that we should draw upon our supervisory
power over the administration of federal crim-
inal justice in order to rule on the matter.
With respect to the probative value portion of the
equation, the Court stressed that the defendant’s in-
vocation of the privilege was not inconsistent with his
testimony at trial. *‘Had he answered the questions
put to him before the grand jury in the same way he
subsequently answered them at trial, this nevertheless
would have provided the Government with incriminat-
ing evidence from his own mouth” (td. at 421-422),
since an unexplained admission before the grand jury
that he knew one of the co-defendants would have
linked him with a criminal conspiracy. Jd. at 422. Its
conclusion was “fortified” by the fact that the defend-
ant had “repeatedly insisted before the grand jury that
he was innocent and that he pleaded his Fifth Amend-
ment privilege solely on the advice of counsel”’ (ibid.).
Moreover, by the time he refused to answer the grand
jury’s questions, the grand jury had already heard
testimony from his co-defendants, and ‘‘it was evident
that [the defendant) was faced with the possibility of
an early indictment.” In these circumstances, the
Court reasoned, ‘‘many innocent men who know that
thev are abor! to be indicted will refuse to help create
a case against themselves * * *.’’ Jd. at 423."

The Court also noted, as factors rendering the claim of
the privilege before the grand jury not probative on the verac-

52

Looking to the other side of the balance, the Court
in Grunewald feared that knowledge that a defendant
had refused to testify on the specifie Fifth Amend-
ment ground that his answers might tend to inerimi-
nate him would prejudice the jury against him, since
it was likely that some jurors would equate an explicit
assertion of the Fifth Amendment privilege with a
confession of guilt. Moreover, the trial judge had re-
fused to charge, as the defendant had requested, that
‘fan innocent man may honestly claim that his answers
may tend to incriminate him.” 7d. at 421, n. 32.
“Weighing these factors,’”’ the Court concluded that it
was prejudicial error for the trial court to permit
cross-examination of the defendant on his invocation
of the Fifth Amendment privilege before the grand
jury. Id. at 424.

In considering the failure of a suspect to explain
seemingly incriminating circumstances to the police,
however, the balance between probative value and
prejudicial impact swings solidly in the other direc-
tion. Here, had respondent explained to the police
that his wife gave him the money found on his per-

ity of trial testimony, certain characteristics of the grand jury
proceeding, such as the absence of counsel, the inability to call
witnesses, the lack of a right of cross-examination, and the
secret nature of the proceedings. 353 U.S. at 422. Similar char-
acteristics pertain to custodial questioning by the police. How-
ever, we submit that a fair reading of the Grunewald opinion
demonstrates that those factors, standing alone, would not have
been dispositive; they simply reinforced a result derived from
other considerations affecting the weight that could reasonably
be attached to the invocation of the privilege, considerations
that are absent in the case at bar.

53

son, as he subsequently explained at trial, he would
not have incriminated himself. Indeed, had the story
checked out, respondent might have been released then
and there from the criminal process. At the very least,
the evidence of his possession of the money would not
have been used against him at trial. Thus, there is
good reason to suppose that, even after receiving
Miranda warnings, he might well have offered such
an explanation and neutralized the suspicion arising
from that circumstance. Respondent’s failure under
these circumstances to explain the source of the
money found on his person soon after the robbery
therefore cast some real doubt upon the veracity of
his subsequent explanation at trial.

Moreover, his interrogation occurred soon after he
was apprehended—hefore he had any firm idea that
evidence was being gathered against him and long
before he “knew he was about to be indicted.’’ Thus,
unlike the defendant in Grunewald, respondent was
not so far along in the criminal process that his re-
fusal to provide an explanation was likely to reflect
a taetical decision. On the contrary, respondent was
interviewed at the start of the criminal process, when
he could reasonably have expected that, had he pro-
vided sufficiently exculpatory information, he could
have avoided the prosecution of the robbery charge
against him.

At the same time, cross-examination in the instant
case presented little chance of prejudice. The jury
was not told that respondent had remained wholly
silent before the police, nor that he had invoked his

54

Fifth Amendment privilege. Indeed, unlike a grand
jury witness who must affirmatively invoke the priv-
ilege, an accused during police interrogation need
never make such an affirmative invocation by assert-
ing that his explanation might be self-incriminatory.

Moreover, the government’s cross-examination
merely disclosed that respondent had not explained to
the police the circumstances surrounding his posses-
sion of the money. Respondent replied at trial that
he had not offered the explanation to the police
because ‘“‘he didn’t feel it was necessary at the time.’’
The jury might infer from this colloquy that the de-
fendant was not telling the truth about the source of
the money. It is unlikely, however, that the jury would
infer from this that he had remained silent before
the police because he feared he would otherwise in-
criminate himself.

Finally, immediately following this colloquy, the
district court—unlike the trial court in Grunewald—
cautioned the jury (App. 5):

He is not required to indicate where the money
came from. There is no responsibility on his
part in regard to that. * * * The defendant is
not required to give any explanation whatsoever
at the time of his arrest.
Had the jury any remaining doubt about the irrele-
vance of respondent’s silence to the issue of his guilt,
this instruction would have removed that potential for
prejudice.

In summary, there is no reason in logie or policy

for presuming that the jury is ill-equipped to assess

55

the probative weight of evidence showing that the
defendant failed to give the exculpatory information
he presents at trial to the police at the time of his
arrest. None of the special circumstances of Grune-
wald, dealing with invocation of the privilege before
the grand jury, are present with regard to the proba-
tive value, for purposes of the jury’s assessment of
the veracity of the defendant’s trial testimony, of the
fact that he previously failed to explain seemingly in-
criminating circumstances to the police.

CONCLUSION

It is therefore respectfully submitted that the deci-
sion of the court of appeals should be reversed.
Rosert H. Bork,
Solicitor General.
JoHN C. KEENEY,
Acting Assistant Attorney General,
ANDREW L. FRey,
Deputy Solicitor General,
Rosert B. ReicH,
Assistant to the Solicitor General,
JEROME M. Fert,
Ivan MICHAEL SCHAEFFER,
Attorneys.
Fesrvuary 1975.

US GOVERNMENT PRINTING OFFICE. t978

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0183%3A4. Public record. Not legal advice.