# Amicus Brief — Doyle v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0202%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1976 - **Citation:** 426 U.S. 610 ## Text Supferse Court, U.% FILED r Nos. 75-5014 and 75-5015 JAN 16 1976 , os TTR fa net ee eee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0202%3A8. Public record. Not legal advice.