Amicus Brief — Doyle v. Ohio

Supferse Court, U.%

FILED

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Nos. 75-5014 and 75-5015 JAN 16 1976

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Su the Supreme Court of the United States

OCTOBER TERM, 1975

JEFFERSON DOYLE, PETITIONER

h v.

STATE OF OHIO

RICHARD WOOD, PETITIONER

Vv.

STATE OF OHIO

ON WRITS OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF OHIO, TUSCARAWAS COUNTY

} BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ROBERT H. BORK,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-5014

JEFFERSON DOYLE, PETITIONER

Vv.

STATE OF OHIO

No. 75-5015

RICHARD WOOD, PETITIONER

Vv.

STATE OF OHIO

ON WRITS OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF OHIO, TUSCARAWAS COUNTY

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

(1)

2

QUESTION PRESENTED

The United States will address the following ques-

tion:

Whether the Due Process Clause of the Four-

teenth Amendment (and through it the self-incrimi-

nation provision of the Fifth Amendment) bars

cross-examination of a defendant in a state criminal

proceeding, who has given exculpatory testimony at

trial, as to why he failed to offer such information

previously.

INTEREST OF THE UNITED STATES

This case presents questions closely related to those

that were before this Court in United States v. Hale,

422 U.S. 171. Although the constitutional aspects of

the issue presented in Hale were briefed at length by

the parties to that case, the Court resolved the issue

through the exercise of its supervisory powers over

the administration of justice in the federal courts,

ruling that, on the facts of that case (422 U.S. at

179), any probative value of the defendant’s silence

was outweighed by potential prejudice. Presumably,

on different facts, a defendant’s prior silence regard-

ing the subject of his trial testimony might be deemed

sufficiently probative to become a proper subject of

cross-examination. Accordingly, there remains open,

in federal as well as state prosecutions, the question

whether inquiry into a testifying defendant’s prior

silence is absolutely barred from introduction in evi-

dence on constitutional grounds.

Apart from this interest in the potential direct

impact of the instant case upon future federal prose-

cutions, the resolution of the constitutional issues

presented herein regarding the scope and impact of

the privilege against compelled self-incrimination is

likely to have significant application in other contexts

and thus has a potential for impact upon a broad

range of cases to which the United States is a party.

STATEMENT

1. After separate jury trials in the Court of Com-

mon Pleas of Tuscarawas County, Ohio, both peti-

tioners were convicted of selling marijuana, in vio-

lation of Ohio Rev. Code § 3719.44(D) (1971). Each

was sentenced to a term of not less than twenty nor

more than forty years’ imprisonment. The interme-

diate appellate court affirmed the convictions, and the

Supreme Court of Ohio denied petitioners’ respective

motions for further review.

The evidence showed that on April 29, 1973, Wil-

liam Bonnell, a state narcotics bureau informant,

purchased ten pounds of marijuana from petition-

ers.’ Bonnell paid for the marijuana with money

which had been photocopied for identification by state

narcotics bureau agents. After the transaction, peti-

tioners departed in a rented car.

1 This brief summary of facts is taken from the trial tran-

scripts and the opinion of the Court of Appeals, Fifth District,

Tuscarawas County, in Ohio v. Doyle, No. CA 1108 (App. 49-

57).

4

A short time later, local police and narcotics bu-

reau agents stopped petitioners’ car and placed peti-

tioners under arrest. Petitioners thereupon were

given Miranda warnings and taken to the county

jail. Thereafter, petitioners refused to consent to a

search of their car. A subsequent search of the car,

pursuant to a valid warrant, elicited the photocopied

money hidden under the front passenger-side floor-

mat.

2. At their respective trials, each petitioner took

the stand in his own defense and testified that he

had been “framed” by informant Bonnell. At the

trial of petitioner Doyle, Doyle claimed that he had

planned to purchase a modest amount of marijuana

from Bonnell but that he informed Bonnell that he

could not afford to purchase the ten pounds which

Bonnell offered him. Doyle further testified that

Bonnell somehow smuggled the photocopied money

into petitioners’ car. At the trial of petitioner Wood,

Wood gave the same exculpatory story and claimed

that at the time of their arrest he and Doyle were

attempting to return to Bonnell the money which

he had “planted” in the car and to demand from

him an explanation for why he had done so. Each

petitioner also appeared as a defense witness at the

other’s trial and offered his story to corroborate the

other’s testimony.

At each trial, upon cross-examination of the de-

fendant, the state prosecutor elicited the fact that

the defendant had not offered his exculpatory story

to the authorities at the time of his arrest, at his

5

preliminary hearing, or at any other time prior to

the commencement of trial. The prosecutor elicited

the same facts from each petitioner when he ap-

peared as a defense witness at the corresponding

trial. In addition, at petitioner Doyle’s trial, the

prosecutor elicited from Doyle the fact that he had

not consented to the search of the car in which he

had been riding when he was arrested; at petitioner

Wood’s trial, a government agent testified that Wood

had not consented to the search of the car. Finally,

during closing argument at each trial, the prosecutor

stated that the defendant’s failures to volunteer his

exculpatory story at the time of his arrest or at any

time prior to his testimony at trial, as well as his

refusal to consent to the search of the car, raised the

inference that his story had been recently fabricated.

At both trials, defense counsel unsuccessfully ob-

jected to all question: and statements regarding peti-

tioners’ prior silence and their failure to consent to

the search. On appeal, the state court of appeals

held that these questions and closing arguments were

properly designed to test the credibility of the wit-

nesses (App. 55-56; 61-62); the Supreme Court of

Ohio denied petitioners’ motions for further review

(App. 67, 69).

ARGUMENT

In our brief in United States v. Hale, supra, we

argued that the Fifth Amendment does not bar cross-

examination of a defendant who has given exculpa-

tory testimony at trial as to why he failed to offer

such information at the time of his arrest. The Court

6

in Hale never reached the constitutional issue, how-

ever. Instead, it exercised its supervisory authority

over the lower federal courts to weigh the probative

value of such questioning against its potential for

prejudice, and held that, on the facts of that case,

the defendant’s silence during custodial police inter-

rogation after he had just been given Miranda warn-

ings was insufficiently probative to justify admission

of such evidence.

In the instant case, the constitutional question is in

the forefront, since the state court has in effect deter-

mined that the evidentiary value of such questioning

does outweigh its potential for prejudice. According-

ly, the constitutional arguments we set out in Hale

are directly pertinent here. If our analysis is correct,

it is permissible for state prosecutors to test the credi-

bility of a defendant’s testimony by eliciting the fact

that he failed to explain seemingly incriminating cir-

cumstances at the time of his arrest. We accordingly

rely upon the discussion of the constitutional issues

contained in our brief in Hale. For the convenience

of the Court, we have appended to this brief the rele-

vant portions of our brief in Hale.

Respectfully submitted.

ROBERT H. BorRK,

Solicitor General.

JANUARY 1976.

la

APPENDIX

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

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-

2a

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-

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-

permissible for the prosecution 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

3a

v. Arizona, 384 U.S. 436, 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.

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

4a

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

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-

ifications.

s s es e :

5a

ARGUMENT

I. THE JURY SHOULD BE PERMITTED TO ASSESS THE

CREDIBILITY OF A DEFENDANT’S TESTIMONY BY

LEARNING OF HIS PRIOR FAILURE TO EXPLAIN

SEEMINGLY INCRIMINATING 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 al-

lowed to consider his prior failure to tell it

to the police

A defendant who takes the stand places 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

proper to cross-examine a defendant as to why he

failed to tell his story to the police.°

* The guilty criminal defendant has substantial incentives to

commit perjury, in view of the personal consequences of a con-

viction. At the same time, the constraints that normally oper-

ate to discourage witnesses from prevarication apply with

diminished force to the criminal defendant. These factors

make it especially important to allow thorough probing of the

veracity of the testifying defendant.

6a

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. Texas,

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 vy. 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-

culpatory 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 to remain silent dur-

ing police interrogation thereby license him to give

*See 3A Wigmore, Evidence § 890 (McNaughton rev. ed.

1961) and cases cited therein.

7a

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

Amendment when admitted as evidence of guilt, the

Court in Harris reasoned (401 U.S. at 224-225):

It does not follow * * * that evidence inad-

missible against an accused in the prosecution’s

8a

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 construeu 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 has 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

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

9a

given the police an explanation of the source of his

money contrary to the one he subsequently gave at

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, 411i 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, C.A. 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 Burt 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

rolice but failed to indicate the source of stolen goods that

were found on his property. He testified at trial that he had

purchased them. During closing argument, the prosecutor com-

10a

trial, it is clear under the Harris holding that such

explanation would have been admissible to impeach

his 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 ot

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 case,

which merely apprises the jury of a defendant’s si-

lence before the police, obviously does not present even

that nominal danger.

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

= ws testimony at trial that the shooting had been acci-

ental.

lla

2. By the same token, a defendant’s silence during

police interrogation should be no exception to the re-

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-

stances and events”—such as his prior silence before

the police— “* * * without subjecting his silence to

the inferences to be naturally drawn from it.” Cami-

netti 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-incrimination 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

12a

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-

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-

cific 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

13a

appeared at the first trial. This time, Raffel chose to

take the stand and rebut the witnesses’ 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

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 because “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

l4a

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

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-

tions. 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

15a

B. . Neither Griffin nor Miranda requires the

result reached by the court of appeals

Neither Griffin v. California, supra, nor Miranda v.

Arizona, 384 U.S. 436, both relied upon by the major-

ity below, is inconsistent with this analysis. At most,

those cases express the proposition that a defendant

may, in accord with his Fifth Amendment privilege,

remain silent without his silence being used against

him as evidence of guilt. But that proposition is fully

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 court

instructed the jury that, while the defendant had a

constitutional right not to testify, and his failure 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-

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-examina-

tion in Stewart sought to discredit the claim of insanity rather

than to impeach the defendant’s testimony.

16a

dicating that among the inferences that may be rea-

sonably drawn therefrom those unfavorable to the

defendant are the more probable” (386 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.

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

—_

—ar ae

17a

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 le

did not testify, had no opportunity to rebut the infer-

ence. As a result of invoking the privilege in Raffel

(and of remaining silent in the instant case), how-

ever, the defendant at most risked being called upon

to explain 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

10 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.

18a

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 circum-

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 ef-

fects 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-

-

- + ees 5

19a

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 “cf.”), 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 affirma-

tively 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

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.”

By contrast, the ordinary application of the self-incrimi-

nation provision requires an affirmative assertion of a color-

able 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.

12 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 “invoca-

tion” of the privilege against self-incrimination is firmly

rooted in our law and reflects a reasonable presumption that

such a defendant, if called to the stand, would invoke the privi-

lege (he is, of course, not permitted to be called, because of the

risk of impermissible prejudice if he is forced to claim possible

20a

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

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 promise that

self-incrimination before the jury). Whatever may be said of

the exercise-of-right/penalty analysis in the Griffin context,

however, we believe it would be inappropriate to extend it to

the instant circumstances. Moreover, the situations are dis-

tinguishable insofar as the practice of comment and inference

on a defendant’s failure to take the stand entails a perceptibly

greater hazard of pre, adice flowing from the act of exercising

the right (rather than simply the reasonable inferences aris-

ing from silence) than is present in the instant situation.

—

2la

this consequence impermissibly burdens the choice to

remain 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 re-

mote from the circumstance of police interrogation

and—assuming the defendant has a reasonable expla-

nation for why he chooses to remain silent—so un-

likely, that it cannot be assumed to have a real

deterrent impact upon the decision to remain silent

during police interrogation.

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 oner-

ous than many other constitutionally sanctioned con-

sequences 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 con-

22a

Sequences that could flow trom his decision to remain

silent. Finally, we show that use of an accused’s si-

lence at the time of arrest to impeach his trial testi-

mony does not jeopardize any of the values that the

Fifth Amendment privilege is thought to protect.

A. The possibility of impeachment of a defend-

ant’s testimony by reference to his prior si-

lence is 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 it constitute an invpermissible compul-

sion to answer police questions.

Even assuming that the Fifth Amendment privi-

lege is the source of an arrestee’s right to silence and

that the privilege is fulfilled only when he is guaran-

teed the right “to remain silent unless he chooses to

speak in the unfettered exercise of his own will,”

Miranda v. Arizona, supra, 384 U.S. at 460; Malloy

v. Hogan, 378 U.S. 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 conse-

quences which may result from a witness’ silence be

forbidden merely 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 inter-

ests it is designed to protect.” Garrity v. New Jer-

sey, 385 U.S. 493, 507 (Harlan, J., dissenting).

23a

1. We have already adverted to the “strong inter-

est under any system of justice of making available

to the trier of fact all concededly relevant and trust-

worthy evidence which either party seeks to adduce.”

Michigan v. Tucker, supra, 417 U.S. at 450. Mani-

festly, this includes knowledge of the defendant’s

failure to explain seemingly incriminating circum-

stances to the police at a time when the accuracy of

the explanation could have been independently veri-

fied. On the other hand, from the standpoint of the

accused, the possible adverse consequence at trial of

remaining silent at police interrogation represents

no hazard to the integrity of the privilege. Indeed,

the consequence is nothing more than a nominal stra-

tegic 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.

This consequence simply does not arnount to “com-

pulsion” in the sense relevant for bringing the protec-

tion of the self-incrimination provision into play—.e.,

the kind of circumstance “likely to exert such p™*s-

sure upon an individual as to disable him from ma..-

ing a free and rational choice,” Garrity v. New Jer-

sey, supra, 385 U.S. at 497. It does not remotely

resemble “the lurid realities which lay behind the en-

actment of the Fifth Amendment * * *, the pain of

incarceration, banishment, or mutilation,” Griffin v.

California, supra, 380 U.S. at 620 (Stewart, J., dis-

senting). It is a far ery from such “penalties” for

24a

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; physical and mental exhaustion from sub-

jection to seemingly endless interrogation, Watts v.

Indiana, 338 U.S. 49; loss of job, Garrity v. New

Jersey, supra; or subjection to the kinds of police in-

terrogation practices described in Miranda itself.

2. In fact, the possibility of such a strategic dis-

advantage at trial following upon silence during po-

lice interrogation is far less grave than many similar

strategic disadvantages permissibly following upon

invocation of the privilege in other circumstances.

“The criminal process, like the rest of the legal sys-

tem, is replete with situations requiring ‘the making

of difficult judgments’ as to which course to follow.

* * * The threshold question is whether compelling

the election impairs to an appreciable extent any of

the policies behind the rights involved.” McGautha v.

California, 402 U.S. 183, 218.

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 unconstitution-

ally penalized by the fact that, by failing to take the

stand, he lost his opportunity to be heard by the jury

in mitigation of sentence and therefore suffered an

—_—

25a

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 opportunity to testify in mitigation of sentence.

After assaying the various tactical choices facing an

accused during and before a criminal trial, Justice

Harlan concluded in his opinion for the court that

the pressures that might cause similarly situated de-

fendants to furnish arguably testimonial or incrimi-

nating information were no different from other pres-

sures licitly generated by the innate complexity of

criminal litigation (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 defendant in a single-

verdict capital case to incriminate himself, un-

less there is something which serves to distin-

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 de-

scribed.

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

26a

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. In-

deed, 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 privi-

lege at trial. Cf. Brady v. United States, 397 U.S.

742; McMann v. Richardson, 397 U.S. 759; Parker

v. North Carolina, 397 U.S. 790.

An arrestee’s evaluation of his opticns in deciding

whether to speak or remain silent in response to

police questions will depend upon many factors, such

as his perception 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 could

verify the information and the likely impact of the

ec

27a

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 volun-

tary choice.”

13 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 who are guilty of the offense of which they are

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

28a

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-

cution 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

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

alherence 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.

29a

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 frequently

forced to testify himself * * * in an effort to

reduce the risk of conviction. * * * That the

defendant faces such a dilemma demanding a

choice between complete silence and presenting

a defense has never been thought an invasion of

the privilege against self-incrimination.

* * * * *

At most, the rule only compelled petitioner to

accelerate the timing of his disclosure, forcing

him to divulge at an earlier date information

that the petitioner from the beginning planned

to divulge at trial. Nothing in the Fifth Amend-

ment 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 disadvan-

tage at trial of being barred from presenting an alibi

defense, this consequence was not considered to im-

pose an impermissible burden upon his election

whether to remain silent.

The same logic would seem to compel a reversal in

the instant case. If in consequence of maintaining

30a

silence prior to trial a defendant may be barred alto-

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 ar-

rest. 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 somewhat more likely to “accelerate the tim-

ing of his disclosure” than otherwise. But this con-

sideration is hardly tantamount to an unconstitu-

tional 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.

A defendant who contemplates testifying in his own

behalf is faced 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, e.g., Brown v. United States, 356 U.S. 148, Fitz-

patrick v. United States, 178 U.S. 304, 314-316; he

3la

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

case is denied, he risks bolstering the government’s

case 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 nis 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 exculpatory 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 becomes 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

82a

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 silent

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 of every juncture. Cf.

Schneekloth v. Bustamonte, 412 U.S. 218, 226. An ac-

cused 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

_

Pe

33a

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 discerned

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 tw 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.”

4 If this were indeed the ground of the court’s decision, it

implies that the cross-examination at issue would pass consti-

tutional muster had respondent been apprised at police inter-

rogation 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 provide such notice if this Court deems such modifi-

cation necessary to assure fairness to arrestees, it seems to us

that the addition 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.

34a

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 course 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 circumstances, where “that action

may be said to affect materially the accused’s choice

of claiming or waiving the privilege and results in

prejudice.” Jbid.; 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 re-

flected in the privilege against self-incrim-

ination were not impaired by the cross-

examination of respondent

The values thought to be reflected by the privilege

against self-incrimination were comprehensively cata-

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-

omens» owiehe ame

a ee

35a

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

penalties of the “cruel trilemma’”—perjury and con-

tempt.

b. Neither would the rule for which we contend

subvert the preference for an accusatorial system of

criminal justice. Confessions, so long as they are

voluntarily made, have a recognized and valid place

in our aecusatorial system. Since, for the reasons we

have previously discussed, the possible use of silence

for impeachment does not impair the voluntary char-

acter (in the constitutionally relevant sense) of the

36a

arrestee’s election to speak or stand’ mute, the rule

would not perceptibly alter the existing character of

our accusatorial system.

ec. 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 accus2d’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 lawfi\ly arrested by the police has

already satisfied the threshold requirement of prob-

able cause. Moreover, by the time the prosecution

makes re**rence to his silence, the individual has

already g ... to trial and has chosen to testify in his

own defense. Indeed, he will choose to reveal personal

information 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

37a

on his privacy than is necessarily entailed by his own

tactical choices within the legitimate criminal justice

process.

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

silence 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.

WH ©. 8. covennment paimrine orrice, 1976 212793 «6192