Brief for Respondent — United States v. Hale
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| MAR} 1 1975
ce : ICHAEL RODAK. JR.,CL
- Supreme Court of the Gnited est:
OCTOBER TERM 1974
No. 74-364
UNITED STATES OF AMERICA,
Petitioner,
Vv.
WILLIAM G. HALE,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
BRIEF FOR RESPONDENT
/
LARRY J. RITCHIE ;
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D. C. 20001
Attomey for Respondent
/
Washington, 0.C. ¢ CLB PUBLISHERS’ « LAW PRINTING CO. © (202) 393-0625
ARGUMENT
a
Il.
(i)
TABLE OF CONTENTS
IMPEACHMENT OF A DEFENDANT WHO
OFFERS EXCULPATORY TESTIMONY AT
HIS TRIAL BY HIS SILENCE AT THE
POLICE STATION AFTER HIS ARREST
AND RECEIPT OF MIRANDA WARNINGS
VIOLATES HIS PRIVILEGE AGAINST
SELF-INCRIMINATION ................
A. Silence of an accused at the police
station following his arrest and receipt of
Miranda warnings is not inconsistent
with the accused’s offer of exculpatory
testimony at his trial and reference to
that silence at trial is prejudicial ........
B. The prejudicial effect of the evidence of
the defendant’s prior silence at the
stationhouse violates the privilege against
self-incrimination ...................
A DEFENDANT WHO TESTIFIES AT
TRIAL DOES NOT RETROACTIVELY
WAIVE HIS CONSTITUTIONAL RIGHT
TO REMAIN SILENT DURING CUS-
TODIAL INTERROGATION .............
A. The right to remain silent at trial and
the right to remain silent during cus-
todial interrogation are severable rights ... .
B. The present case is not controlled by the
Court’s decision in Raffel v. United
“eee eee eee eew eee eeeee
add ee
ee@enoeoevoeeeoe eee eee eeeveevneeeseeeenen
States, 271 U.S. 494 (1926) .......... .
u
ll. IT IS UNFAIR TO THE UNCOUNSELED
ACCUSED WHO HAS BEEN GIVEN THE
MIRANDA WARNINGS TO IMPEACH HIS
TRIAL TESTIMONY WITH HIS SILENCE
Pum gor es ee ee rere
IV. IMPEACHING THE DEFENDANT’S TRIAL
TESTIMONY BY HIS SILENCE IN THE
FACE OF CUSTODIAL INTERROGATION
IMPOSES AN IMPERMISSIBLE PENALTY
ON HIS RIGHT TO REMAIN SILENT .......
A. Allowing comment on the defendant’s
assertion of the privilege penalizes the
privilege by making its assertion costly .....
B. Allowing impeachment of a defendant’s
trial. testimony by his silence at the
stationhouse would put impermissible
pressure on the privilege against self-
incrimination at the time of arrest ........
C. Permitting impeachment of a defendant’s -
trial testimony by-his silence at the time
of his arrest would unconstitutionally
require the defendant to elect between
Gonaminetioml GAGA... 6s. s 6h a ces vgs oes
D. The police have no right to take
**discovery” from an_ uncounseled
accused and the impeachment 6f the
defendant in this case cannot be justified
as a sanction imposed for his failure
eran pe re
COE A se Os das fi.
TABLE OF AUTHORITIES
Cases
Abramson v. California, 332 U.S. 46 (1947) .........
Agnellino v. New Jersey, 493 F.2d 714 (3 Cir.
3. Rare SP rere eT eee ree ee
=>"~—" (iii)
Page
Baker v. United States, 357 F.2d 11 (5 Cir. 1966) ~....... 16
Bram v. United States, 168 U.S. 532 (1897) ...... 7, 8, 39, 47
Brooks v. Tennessee, 406 U.S. 605 (1972) .... 32,33, 37, 50,
~ $1, 53, 56, 59
Brown v. Walker, 161 U.S. 591 (1896) ............ 3,4,7
Bruno v. United States, 308 U.S. 287(1939) ........ 19, 48
Caminetti v. United States, 242 U.S. 470 (1917) ......... 30
Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d
a Sg in Gib cab kbs oe b aes 2 6 7, 14
Counselman v. Hitchcock, 142 U.S. 547 (1892) ......... 9
Dean v. Commonwealth, 209 Va. 666, -166 S.E.2d
ES Se Wis a bab se 6 wh Oa Ae vo Ow 8 31
Deats v. Rodriquiz, 447 F.2d 1023 (10 Cir. 1973) ........ 22
Ellis v. United States, 416 F.2d 791 (D.C. Cir.
Oe ha se Wea hs odes 6 0 es 6 CaS 31
Escobedo v. Illinois, 378 U.S. 478 (1964) ...... 7, 15, 46, 51
Fagundes v. United States, 340 F.2d 673 (1 Cir.
ASO yin a er Shag eo a Seng epee 16, 22
Ferguson v. Geotgia, 365 U.S. 570 (1961) ........ 50, 53, 59
Fitzpatrick v. United States, 178 U.S. 304(1900) ........ 29
Fowle v. United States, 410 F.2d 48 (9 Cir. 1969) . . .15, 22, 40
Garrity v. New Jersey, 385 U.S..493 (1967) ............ 50
Gideon v. Wainwright, 372 U.S. 335 (1963) ............ 51
Gillison v. United States, 399 F.2d 586 (D.C. Cir.
ae RE a OE see ee eet tee 22
Green v. United States, 355 U.S. 184 (1957) ........... 29
Griffin v. California, 380 U.S. 609 (1965) .... 7,8,9,25, 28,
29, 36, 37, 47, 48, 49
Grunewald v. United States, 353 U.S. 391 (1957) .. 17, 18, 27,
28, 29, 32, 34, 35, 36, 37, 45, 49
Harris v. New York, 401 U.S. 222 (1971)... .9, 10, 25, 26, 39
Helton v. United States, 221 F.2d 338 (5 Cir. 1955) ......
(iv)
Hoffman v. United States, 341 U.S. 479 (1951)
In re Neff, 206 F.2d 149 (3 Cir. 1953)
Jackson v. Denno, 378 U.S. 368 (1964) ......--+--- 21, 32
Johnson v. Patterson, 475 F.2d 1066 (10 Cir. 1973)16, 17, 22,40
Johnson v. United States, 318 U.S. 189 (1943) 32, 35, 40, 41, 56
Kelly v. United States, 99 U.S. App. D.C. 13, 236
F.2d 746 (1956)... -- 2 eee cere cece eee ecees 13
Kirby v. Illinois, 406 U.S.°682 (1972) -..------+-+e+e-: 59
Leary v. United States, 395 U.S. 6 (19GB), ccc eee eee 30, 32
Loper v. Beto, 405 U.S. 473 COOTER in oe oe ee 16, 21, 26, 51
Malloy v. Hogan, 378 U.S. 1 (1964) ....:---- 4, 6, 8, 28, 39
Maness v. Meyers, ___. U.S. —__., 95 S.Ct. 584
(1975S) cn ccc eww cees eee tre Tae ee ee 16
McCarthy v. United States, 25 F.2d 298 (6 Cir.
ON a ng ee oes hoe Soke cha es esse eee 39
McGautha v. California, 402 U.S. 183 (1971) ... 53, 54, 56, 58
Melson v. Sard, 402 F.2d 653 (D.C. Cir. 1968) ......---- 52
Michelson v. United States, 335 U.S. 469 (1948) ......--- 10
Michigan v. Tucker, 417 U.S. 433 TIGTA) cee enc 6, 9, 25, 47
Miranda v. Arizona, 384 U.S. 436 (1966) . .6,7, 8,9, 10, 15, 16,
25, 32, 38, 39, 42, 43, 44, 45, 46, 47, 48, 49
Murphy v. Waterfront Commission, 378 US. 52
ee ee ee. 6,7, 8, 44, 51
Noto v. United States, 76 S.Ct. 255 (Harlan, Circuit |
Bele TOES) fo eee vce ewe ee sect ee see eetes 53
O’Hearn v. State, 79 Neb. 513, 113 N.W. 130
ON OR I ie 14
People v. Bobo, 390 Mich. 355, 212 N.W.2d 190
PIN ico ose eed os See 34
y. Ellis, 65 Cal.2d 529, 421 P.2d 393, 55
Cab. Rpts. 385 (1966) =. . eee fewer e eee ee 41,42
' (v)
Page
People v, Jordon, 7 Mich. App. 28, 151 N.W.2d 242
6,1) 31
People v. McColor, 36 Mich. App. 455, 194 N.W.2d
©.) (CL) Benne eee 25
People v. Perez, 65 Cal.2d 615, 422 P.2d 597, 55.
eNO IGG eek 30
People v. Reed, ____ Mich. ___, 224 N.W.2d 867
es va cae as 39
People v. Rolston, 31 Mich. App. 200, 187 N.W.2d
PR ee a a 31
— V- Sharer, 61 Cal.2d 869, 395 P.2d 899, 40
ee OE es ce oan a 20, 21, 43, 44
— ¥- Simmons, 28 Cal.2d 699, 172 P.2d 18
a, cement 13
a Y. vyiited States, 271 U.S. 494 (1926) 33, 34, 35, 36, 37
ee. ‘aited States, 349 U.S. 155 (1955) ........... 4
i ot Bustamonte, 412 U.S. 218 (1973) ........ 59
Vv.
ited States, 410 F.2d 969 (5 Cir. 1969) ...... 24
sang 390 U.S. 377 (1968 52, 54
a "United States, ( er reine ;
(1956) v. Board of Education, 350 U.S. 551
ee ree 4, 5,28
Spevack v. exas, 385 US. 554 hs fs MRS ere Grae 10, 21, 54
State v, HesSlein, 385 US. 511 (1967) .............6. 50
State v. Smiter, 137 S.C. 145, 134 S.E. 885 (1926)... 13,14
Stewart v. Uth, 242 Ore. 223, 408 P.2d 942 (1965) ...... 39
Tehan v. Shinited States, 366 U.S. 1 (1961) 21, 22, 30, 34, 35, 36
Twining v. Nott, 382 U.S. 406 (1966) .............0-. 6,7
Ullmann v. Wew Jersey, 211 U.S. 78 (1908) ............ 9
Jnited States, 350 U.S. 422 (1956) ....... 4,7,9
(vi)
Page
United States v. Anderson, 498 F.2d 1038 De...
Che: 19D) | os bic hak Winn sees es ee se 17, 19, 22, 39
United States v. Arnold, 425 F.2d 204 (10 Cir.
NO a ae ew ee oe is Be ee tes cee tet 48
United States v. Branker, 418 F.2d 378 (2 Cir.
SS ES Or eae ene hele SB Te ay
United States v. Brinson, 411 F.2d 1057 (6 Cir. :
1969) 12, 22,32, 40
United States v. Sink. 490 F.2d 1300 (8 Cir.
ES eae gree ge ee eee elt 31
United States v. Carignan, 342 U.S. 36 (1951) ..-------: 52
United States v. Fairchild, 505 F.2d 1378 (5 Cir.
WI gaia eek oon s ose eh See eee te os 24, 26
United States v. Ghiz, 491 F.2d 599 (4 Cir. 1974) ... 23,4.
United States v. Gross, 276 F.2d 816 (2 Cir. 1960) ...... 22
United States v. Grunewald, 233 F.2d 556 (2 Cir.
* 1956) rev'd 353 US. 391 (1957) .....-- 7, 19, 20, 35, 37
United States v. Jackson, 390 U.S. 570 (1968) .....-- 33, 54
United States v. Johnson, 488 F.2d 1206 (1 Cir.
Sg ESR FI ee ee ee eee 31
United States v. Kroslack, 426 F.2d 1129 (7 Cir. |
i a a iene yee eae ee 48
United States v. LoBiondo, 135 F.2d 130 (2 Cir.
Gags SP eI rare a a 49
United States v. McKinney, 379 F.2d 259 (6 Cir.
OT a ia awe he ese eee ees Soe ee re ee 48
United States v. Miranti, 253 F.2d 135 (2 Cir.
Oe EE Os AS Se Side ee ae 31
United States v. Quintana-Gomez, 488 F.2d 1246 (5
24, 26
Oe TOTES i i caw iiic se ccc cts ene sees ees:
United States v. Ramirez, 441 F.2d 950 (5 Cir.
ey ie ee a 6 6S ee ek wR Pe 8S. 8S AES
a ied s ceatheneettnete
(vii) °
Page
United States v. Semensohn, 421 F.2d 1206 (2 Cir.
i, ERE BONS ee re re a a eae 22
United States v. White, 377 F.2d 908 (4 Cir. 1967) ...... 23
United States ex rel. Burt v. New Jersey, 475 F.2d
I, Bg ee ik kee ccc 23, 26
United States ex rel. Macon v. Yeager, 476 F.2d
ss REESE ASDC SL ng 16
United States ex. rel. Smith v. Brierly, 384 F.2d
gn eG 48
Walder v. United States, 347 U.S. 62 (1954) ............ 10
Wardius v. Oregon, 412 U.S. 470 ver ae bees wk bs 57, 58
Watts 7, peewee, oom US. FOCISS) 23... ee cece 15
Williams v. Florida, 399 U.S. 78 (1970) .......... 56, 57, 58
Wilson v. United States, 149 U.S. 60 (1893) ... 5,8, 28,37, 47
Statutes and Regulations:
a i ee are 8, 50
The Federal Rules of Evidence, Rule 801 .............. 11
The Federal Rules of Evidence, Rule 403 AVE R ONS bebe os 27
The Federal Rules of Evidence, Rule 608(b) ......... +32
Miscellaneous
Developments in the Law, Confessions, 79
HARV.L.REV. 935 (1966) ....... ORT ee Eee 13
Driver, Confessions and the Social Payctiology of
Coercion, 82 HARV. L. REV. 42(1968) ............ 46
Griswold, THE FIFTH AMENDMENT TODAY 7
ee AE ws kg 5 ono sk 46 6 bw ke ck ks 7
Memes CY, OOZ CIOS) 5d. ce. eee ccc cue 42
eal tae te CIS2S) iwi Sg fe oe 19
McCormick, EVIDENCE (1972) ........ 4, 11, 17, 27, 29, 39
(viii)
Tacit Criminal Admissions, 112 U. PENN. L. REV.
BEE 8 oh ic Cee Oe eA a Ow ee we 8 Oe
3 A Wigmore, EVIDENCE §1042 (Chadboum rev.
og SBR ET SOROS BS i Lea 7 ee eee See eee
4 Wigmore, EVIDENCE §1072 (Chadbour rev.
ON ee oo oh EP ae sie a so vk vie baw ss
We Be ee ek oa
_ <a
IN THE
Supreme Court of the United States
OCTOBER TERM 1974
No. 74-364
UNITED STATES OF AMERICA,
Petitioner,
WILLIAM G. HALE,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
BRIEF FOR RESPONDENT
QUESTION PRESENTED
Whether the Fifth Amendment bars _cross-
examination of a defendant who has given exculpatory
testimony at trial as to why he failed to offer such
information at the time of his arrest.
>
SUMMARY OF ARGUMENT
The Fifth Amendment privilege against self-
incrimination which extends to custodial interrogation
at the stationhouse gives the accused in a criminal case,
innocent and guilty alike, the right to remain silent.
The privilege also forbids comment on the exercise of
the privilege because of the danger that the jury will
draw the impermissible inference of gut from silence.
If, on the one hand, the accused has the right to remain
silent but, on the other hand, the exercise of the right
could be used to suggest his guilt, the privilege would
be meaningless. It also is impermissible to comment on
the defendant’s silence at the stationhouse on cross-
examination of the defendant at trial because the
danger of the impermissible inference is present and is
not likely to be eliminated by cautionary instructions.
In addition, impeachment use of silence is improper
because silence is perfectly consistent with the trial
testimony of the accused and sheds no light on
credibility. Silence at arrest is not inconsistent with the
offer of exculpatory testimony by the defendant at his
trial. Even an accused with thesbenetit of counsel might
prefer to offer his testimony to a jury at trial rather
than to the police at the stationhouse.
It is unfair for the government to warn the accused
that he has the right to remain silent and that anything
he says can be used against him, and to then use his
silence to impeach his trial testimony. If silence could
be used to impeach, the uncounseled accused at the
stationhouse would be forced to choose between his
right to remain silent and the full enjoyment of his
—
3
right to testify in his own defense at trial. Such a ,
choice between competing constitutional rights is
impermissible. In addition, the police would possess a |
tactic whereby they could secure incriminating “evi-
dence” from the accused merely by asking him a
question. If he responds, his inculpatory statements
could be used to show guilt and his exculpatory
statements could be. used to impeach his trial
testimony. If he does not respond, his silence could be
used to impeach his trial testimony and suggest guilt.
The government would be relieved of their burden to
shoulder the entire load of the prosecution and the
dignity of the accused would suffer. The defendant who
testifies at his trial should not be deemed to have
retroactively waived his right to remain silent at the
stationhouse.
ARGUMENT
Legal scholars agree that one important reason for
inclusion of the Fifth Amendment privilege against
self-incrimination in the Constitution was the inquisi-
torial practices of the English Courts of Star Chamber
and High Commission. See 8 WIGMORE, EVIDENCE
§2251 (McNaughton rev. 1961). In Brown y. Walker,
161 U.S. 591, 597 (1896), it is stated:
But, however adopted, it [the privilege] has
become firmly embedded in English, as well as
American jurisprudence. So deeply did the ineq-
uities of the ancient system impress themselves
upon the minds of the American colonists that the
States, with one accord, made a denial of the right
4
to question an accused person a part of their
fundamental law, so that a maxim, which in
England was-a mere rule of evidence, became .
clothed in this country with the impregnability of
a constitutional enactment.
Two branches of the privilege have eens: the
privilege of an accused in a criminal proceeding and the
privilege of a witness. MCCORMICK, EVIDENCE §116
(1972). The privilege of a witness, to invoke the
privilege on a question by question basis, MCCORMICK,
EVIDENCE § § 134-140 (1972), is not involved in, the
present_case. We are here concerned with the privilege
of an accused in a criminal proceeding which guarantees
to him the right “‘to remain silent unless he chooses to
speak in the unfettered exercise of his own will, and to
suffer no penalty, ..., for such silence.” Malloy vy.
Hogan, 378 U.S. 1, 8 (1964).
The privilege may sometimes be ‘“‘a shelter to the
guilty” but it is also ‘‘a protection to the innocent.”
Quinn vy, United States, 349 U.S. 155, 162 (1955). As
stated in Ullmann y. United States, 350 U.S. 422, 426
(1956):
Too many, even those who should be better
advised, view this privilege as a shelter for
wrongdoers. They too readily assume that those
who invoke it are either guilty of crime or commit
perjury in claiming the privilege. [footnote omit-
ted].
And again in Slochower v. Board of Education, 350
U.S. 551, 557-558 (1956), it is stated:
At the outset we must condemn the practice of
imputing a sinister meaning to the exercise of a
person’s constitutional right under the Fifth
A
-
"
'
_ Amendment.... The | privilege against self-
incrimination would be reduced to a’ hollow
mockery if its exercise could be taken as
equivalent either to a confession of guilt or a
conclusive presumption of perjury. As we pointed
out in Ullmann, a witness may have a reasonable
fear of prosecution and yet be innocent of any:
wrongdoing. The privilege serves to protect the
innocent who otherwise might be ensnared by
ambiguous circumstances. !
There are many reasons why an innocent defendant
may not want to testify in his defense. In discussing the
: federal statute which provides that no presumption can
be drawn from the failure of a defendant to testify, the
Court stated in Wilson v. United States, 149 U.S. 60,
» 66 (1893): one ne Ghee
It is not everyone who can safely venture on the
witness stand though entirely innocent of the
charge against him. Excessive timidity, nervousness
when facing others and attempting to explain
transactions. of a suspicious character, and offenses _,
charged against him,’ will, often’ confuse and
embarass him to such a degree as to increase rather
than remove prejudices against him. It is not every
one, however honest, who would, therefore,
willingly be placed on the witness stand. The
Statute, in tenderness to the weakness of those
who from the causes mentioned might refuse to
ask to be a witness, particularly when they may ;
have been in some degrée compromised by their
association with others, declares that the failure of
the defendant in a criminal action to request tc be
a witness shall not create any persumption against
him.
There are two main policy reasons for the privilege as
applied to the normal processes of criminal investigation
, |
te -
6
and prosecution today. See generally 8 WIGMORE,
EVIDENCE §2251: (McNaughton rev. 1961). One of
these is that the privilege contributes toward “‘a fair
state-individual balance by requiring’ the government to
leave the individual alone until good cause is shown for
disturbing him and by requiring the government in its
contest with the individual to shoulder the entire load.”
Murphy v. Waterfront Commission, 378 | U.S. -$2,. 55
(1964), quoting from 8 WIGMORE, EVIDENCE §2251
(McNaughton rev. 1961). See Michigan v. Tucker, 417
U.S. 433, 449 (1974); Miranda v. Arizona, 384 US.
436, 460 (1966); Tehan v. ,Shott, 382 U.S. 406, 415
(1966). The reason for requiring such a balance is “‘our
preference for an accusatorial rather than an inquisi-
torial system of criminal justice.”” Murphy, 378 U.S. at
$5; ee
“{T}he American system of criminal prosecution is
accusatorial, not inquisitorial, and ... the Fifth
Amendment privilege is its essential mainstay.” Malloy
v. Hogan, 378 U.S. 1, 7 (1964). It was also stated in
Malloy, 378 U:S. at 8:
{[O]ur accusatory system of criminal justice
demands that the government seeking to punish an
individual produce the evidence against him by its
own independent labors, rdther than by the simple
expedient of compelling it from his own mouth.
The other major policy reason for the privilege is
closely alligned to the first:' the privilege prevents the
eliciting of self-incriminating statements by inhumane
treatment and abuses, and respects “the inviolability of
the human personality and of ‘the right of each
individual ‘to a private enclave where he may lead a
private life.’”” Murphy, 378 U.S. at 55, quoting from
7
United States vy. Grunewald, 233 F.2d 556, 581-582
(1956) (Frank, J., dissenting), rev'd. 353 U.S. 391. See
Tehan v. Shott, 382 US. 406, 416 (1966). In terms of
human dignity, the privilege ‘“‘registers an important
advance in the development of our liberty— ‘one of the
great landmarks in man’s Struggle to make himself
civilized.’ ”’ Ullmann v, United States, 350 U.S. 422, 426
(1956), quoting from Griswold, THE FIFTH AMEND-
MENT TODAY 7 ( 1955). See Miranda, 384 U.S. at
360; Commonwealth y. Dravecz, 424 Pa. 582, 227 A2d
904 (1967). If an accused can:
-.. be asked to explain his apparent connection
with a crime under investigation, the ease with
which the questions put to him may assume an
inquisitorial character, the temptation to press the
_ witness unduly, to browbeat him if he be timid or
reluctant, to push him into a comer, and to entrap
him into fatal contradiction, ... is ... painfully
evident.... [Brown y, Walker, 161 U.S. 591, 596
(1896)}. ,
Thus, self-incriminating statements have been viewed
with distrust, Murphy, 378 U.$-at 55, and have been
considered to be unreliable evidence. See, e.g., Bram vy.
United States, 168 U.S. 532 (1897). Indeed, the Court
in Escobedo y. Illinois, 378 U.S. 478, 488-489 ( 1964),
Stated that ‘‘a system of criminal law enforcement
which comes to depend on the ‘confession’ will, in the
long run, be less reliable and more subject to abuses
than a system which depends on extrinsic evidence
independently secured through skillful investigation.”
[footnote omitted].
The privilege against self-incrimination also forbids
comment on the exercise of the privilege. Griffin y,
8
California, 380- U.S..609 (1965)." If the accused has
the right to remain silent but the exercise of the right
could be used to show his guilt, the privilege would be
meaningless. As stated in Griffin, 380 U.S. at 614:
“{C]omment on the refusal to testify is a remanant of
the ‘inquisitorial system of criminal justice.’ Citing
from Murphy, 378 U.S. at 55.
The privilege of the accused to remain silent extends
to interrogation at the police stafion as well as to the
trial itself. Miranda v. Arizona, 384 U.S. 436 (1966);
Bram v. United States, 168 U.S. 532 (1897). The no
comment rule also extends to silence at the station-
house. Miranda, 384 U.S. at n. 37. Miranda established
as procedural safeguards to protect the privilege, a series
of warnings which must be given to the accused who is
subjected to custodial interrogation. Unless these
warnings are given and a waiver of the privilege is
secured, any statements made by the accused will be
excluded from evidence in his trial. The Miranda
exclusionary rule exists as a deterent to police officers
who might be tempted to violate the right of the
\ Historically a defendant in a criminal proceeding was
incompetent to testify in his defense. A federal statute, 18
U.S.C. §3481, provides that a defendant is competent to testify
in his own defense and that no presumption can be drawn from
his failure to testify. This provision has been interpreted to mean
that comment on the defendant's silence is reversible error.
Wilson v. United States, 149 U.S. 60 (1893). The Court did not
“face the constitutionality of commenting on silence until Griffin .
because the statute controlled federal cases and the Fifth
Amendment privilege was not applied to the states until Malloy
v. Hogan, 378 US. 1 (1964). See Abramson v. California, 332
US. 46 (1947).
9
accused to remain silent. See Michigan v. Tucker, 417.
U.S. 433, 433-444 (1974). Harris v. New York, 401
U.S. 222 (1971), allows impeachment by statements
made by the accused at the stationhouse, which are
inconsistent with his trial testimony, even though the
procedural safeguards of Miranda were not complied
with.
The Griffin rule which would not allow comment at
trial on the exercise of the privilege by the accused
exists independently of Miranda. The introduction of
evidence of silence would amount to a violation of the
privilege itself. Such is the case here; the prosecutor
impeached the trial testimony of Mr. Hale by referring
to the fact that he chose to remain silent at the
stationhouse.
In view of the fact that the privilege against.
self-incrimination and the no comment rule are involved
in this case, it should be remembered that the privilege
is not to be applied narrowly or begrudgingly, Twining
v. New Jersey, 211 U.S. 78, 91 (1908); Ullmann y.
United States, 350 U.S. 422, 426 (1956), for the
privilege is “as broad as the mischief against which it
seeks to guard.” Counselman v. Hitchcock, 142 U.S.
$47, 562 (1892).
} ———s
——
¥
10
L
IMPEACHMENT OF A DEFENDANT WHO
OFFERS EXCULPATORY TESTIMONY AT
HIS TRIAL BY HIS SILENCE AT THE
POLICE STATION AFTER HIS ARREST
AND RECEIPT OF MIRANDA WARNINGS
VIOLATES HIS PRIVILEGE AGAINST
SELF-INCRIMINATION.
(A.Silence of an accused at the police station
following his arrest and receipt of Miranda
warnings is not inconsistent th the
accused’s offer of exculpatory imony at
his trial and reference to that silence at trial
is prejudicial.
When a defendant takes the stand at trial and
testifies in his own defense, he may be impeached on
cross-examination by matters which relate to his
credibility as a witness even though those matters might
not otherwise be brought to the jury’s attention.
Evidence of prior convictions, Spencer v. Texas, 385
U.S. 554 (1967), and character evidence, Michelsen v.
United States, 335 U.S. 469 (1948), may be brought
out by the prosecutor to aid the jury in determining if
the defendant is a truthful person. Narcotics unlawfully
seized in a separate prosecution have been allowed to
be used for impeaching a defendant when on direct
examination he denied ever in his life having possessed
narcotics. Walder v. United States, 347 U.S. 62 (1954).
Statements made during police interrogation without
proper Miranda warnings which are inconsistent with
the defendant’s testimony at trial can be used to
_ impeach. Harris v. New York, 401 U.S, 222 (1971). It
——_—
is conter
Hale’s sil nN
me Creu by the government in this case that Mr.
sin acehice at the police station is inconsistent with
victim as : :
aieteial datory testimony at trial.
searched, ile had been identified on the street by the
(Tr.259), One of the persons who robbed him (Tr.39),
having jor the robbery, taken into the police station,
(Tr.253-2: and advised of his right to remain silent.
bench (AMr. Hale was no stranger to police procedures,
by the pecen arrested on a_ previous occasion.
and wheth4). From the prosecutors remarks at the
to the »>pendix 5), it appears that Mr. Hale was asked
Appendix lice where he got the $158 he was carfrying
argues is er he was working. Mr. Hale refused to reply
that he hauestions: “He wouldn’t say anything.”
just caslt€S. It is this silence which. the government
purchase Sinconsistent with Mr. Hale’s trial testimony
It is @4-Feceived the money from his wife who had
that the Cr . welfare check and had asked him to
stand to tone money orders for her.
MeCORMI Uniformly recognized principle of evidence
edibility of a person who takes the witness
made nos . a :
Rules of ptify_may be impeached by the showing of a
_ «sistent statement made by the witness.
assertion or EVIDENCE § §34-37 (1972). Mr. Hale
intended b:@tement at the police station. The Federal
silence is cVidence, Rule 801(a), define “‘statement’”’ as
order to \ ‘statement’ is (1) an oral or written
inconsistent (2) non-verbal conduct of a person, if it is
’ him as an assertion.” Even if Mr. Hale’s
mnsidered to be a statement or conduct, in
use it for impeachment, it must be
It must amount to an “‘assertion” contrary
12
to his later assertion ct trial. A failure to assert a fact
can only be considered_an assertion of the non-
existence of the fact if it would have been natural
under the circumstances to! assert the fact. 3 A
WIGMORE, EVIDENCE § 1049 (Chadbourn rev. 1972).
The question thus becomes whéther it would be natural
for Mr. Hale to tell the police’under the above stated
circumstances that he received thé money from his
wife. ee
Similar considerations apply, to the determination of
whether silence can be used as a tacit admission
(adoption of the statement of another by silence). See
4 WIGMORE, EVIDENCE §1071 (Chadbourn rev.
(1972));-see also United States v. Brinson, 411 F.2d
1057 (6 Cir. 1969). Prior to the introduction into
evidence of silence as a statement, it must be found
that there was a confrontation or a statement which
would under the circumstances naturally call for a
reply.”
Many jurisidctions have adopted a “per se”’ rule that
the arrest of an accused excludes evidence of a
__?See Note, “Tacit Criminal Admissions”, 112 U.Penn.L.Rev.
210, 215-6 (1963), where it is stated:
[C]ourts generally have imposed seven conditions for the
introduction of evidence that an alleged admission by
silence occurred. If silence is the only response by the
defendant, the accusation must have occurred (1) in the
defendant’s presence and (2) within his hearing; (3) he
must have understood it; (4) it ordinarily must_ have
embraced facts within his personal knowledge; (5) he must
have been physically able to speak and (6) psychologically
at liberty to speak; and (7) the statement and surrounding
circumstances must have naturally called for .a reply.
[Footnote omitted] .
13
subsequent admission by silence. As stated in People y,
Simmons, 28 Cal.2d 699, 172 P.2d 18, 26 (1946):
It is also apparent that when a person is in the
hands of his accusers he may well and soundly
conclude that his best interests will be served by
silence, evasiveness, or equivocation. For this
reason, in a number of jurisdictions it has been
held that the mere fact of arrest is sufficient to
render inadmissible the fact of the accused’s failure
to deny accusatory statements when made in his
presence and hearing. These courts maintain that it
is the common knowledge and belief of men in
general that silence while under arrest is most
conducive to the welfare of an accused whether he
be guilty or innocent; that the maintenance of
silence is the best strategic policy for one in the
custody of the law, and that it is entirely
consistent with innocence. [citations omitted].
In Kelly v. United States, 99 U.S. App. D.C. 13, 236
F.2d 746, 749 (1956), the court discussed some of the
motives which might cause an accused under arrest to
remain silent. The court quoted from the case of State
v. Hester, 137 S.C.- 145, 185, 134 S.E. 885, 898-899
(1926): 2
[I]t cannot be disputed that many people, and
even persons who are entirely innocent of
wrongdoing, are afraid to talk in the presence of
detectives. We must not forget, too, that from
time immemorial it has generally been conceded an
unwise thing for those charged with criminal
offenses to talk to anybody and everybody about
°4 WIGMORE, EVIDENCE §1072 (Chadbourn rev. 1972);
Developments in the Law, Confessions, 79 HARV.L.REV. 935,
1038 (1966).
14
their cases, and especially to engage in conversa-
tion with those who may not be friendly to them.
For years and years the members of the bar have
cautioned their clients not to discuss their cases
with those with whom they come in contact,
unless absolutely assured of their freindship, many
good lawyers have advised clients to refrain from
talking at all. This has been the practice so long
that it has beome a well-known fact to our people
generally.
The court also quoted from the case of O’Hearn y.
State, 79 Neb. 513, 522, 113 N.W. 130, 134 (1907):
[T]he very surroundings of the accused in such
cases are such as to render it entirely proper and
natural for him to keep silent in the fear of
misquotation or misconstruction. A person in such
a situation would naturally fear that the worst
# wig interpretation would be placed upon his
wena that the memories of those present
would # lean to, statements prejudicial to his
interests : ai that an officer seeking to convict
might | through zeal any defect in the
statemndk ; ich was actually made.
As the above cases indicate, our citizens have long
understood that it is best to remain silent when arrested
whether they are innocent or guilty,* at least until
* As discussed in Commonwealth v. Dravecz, 424 Pa. 582, 227
A.2d 904, 907 (1967), many proverbs teach the wisdom of
silence:
Silence is Golden; Closed lips hurt no one, speaking may;
Speech is of time, silence is of eternity; For words divide
and rend, but silence is most noble till the end; And
Silence like a poultice comes to heal the blows of sound;
Be silent and safe, silence never betrays you.
Not mentioned but equally applicable is the proverb: “The
toungue is the enemy of the neck.”
15
there is an Opportunity to confer with counsel. This is
the prevalent advice given by counsel to their clients.
“[A]ny lawyer worth his salt will tell the suspect in no
uncertain terms to make no statement to police under
any circumstances.” Escobedo y. Illinois, 378 U.S. 478,
488 (1964), quoting from Watts y, Indiana, 338 U.S.
49, 59 (1949) (Jackson, J., concurring in part and
dissenting in-part); In Fowle y. United States, 410 F.2d
48, 50 (9 Cir. 1969), the court observed:
There are, however situations in which an accused
is clearly under no duty to speak and where there
are importanf>) reasons, regardless of guilt or
innocence, for’ his maintaining silence. In such
circumstances, since innocent and guilty alike may
choose to stan mute, silence, even in the face of
accusation, is highly ambiguous; hence, proof of
such former silence should be excluded under
universally recognized principles of evidence.
In addition to the fact of his arrest, Mr. Hale was
specifically told by the police that he had a right to
remain silent, that anything he said could be used
against him, that he had the right to consult with a
lawyer and to the presence of a lawyer during
questioning, and that if he could rot afford a lawyer,
one would be appointed to represent him prior to any
questioning. See Miranda y. Arizona, 384 U.S. 436
(1966). Particularly in view of this warning, as an
evidentiary matter,-silence at the police station after his
arrest is not inconsistent with Mr. Hale’s Offering of
exculpatory testimony at his trial. There is simply no
inconsistent statement or conduct for use as impeaching
material. Mr. Hale was exercising or enjoying’ his
*See Brief for United States, pages 25-26.
ee ae
16
constitutional rights to remain silent and to consult
with counsel. As Miranda, 384 U.S. at 475, makes clear,
a valid waiver of these rights will not be presumed
simply from silence; rather, there must be an express
statement by the accused that he is willing to make a
statement and that he does not want an attorney.®
As stated in Fagundes v. United States, 340 F.2d
673, 677 (1 Cir. 1965):
When one takes the stand in his own defense he
of course puts his credibility as a witness in issue.
Nevertheless we think it reversible error to permit
evidence of refusal to talk and of request for
counsel on arrest to be used for the purpose of
impeachment. In the first place such evidence is
ambiguous. Fagundes’ words, when arrested can as
well be taken as indi¢ating reliance upon constitu-
tional rights as supporting an inference that his
ability was an afterthought. There is nothing to
indicate which interpretation is more probable.
And in Johnson y. Patterson, 475 F.2d 1066, 1068 (10
Cir. 1973), it was observed that:
[Slilence at the time of arrest is not an
inconsistent or contradictory statement. Silence at
The right to consult with counsel and have counsel present
at the interrogation is indispensible to the protection of the Fifth
Amendment. Miranda v. Arizona, 384 U.S. 436, 469-470 (1966);
see also Maness v. Meyers, US. : , 95 S.Ct. 584,
595-596 (1975). If silence is viewed as a desire to speak with
counsel before talking to the police, impeachment would be
clearly inappropriate. See, ¢.g., United States ex rel Macon v.
Yeager, 476 F.2d 613 (3 Cir. 1973); Baker v. United States, 357
F.2d 11 (5 Cir. 1966). Nor does the act of testifying in his own
defense waive the earlier right to counsel at the stationhouse. Cf.
Loper v. Beto, 405 U.S. 473 (1972).
17
the time of arrest is simply the exercise of a
constitutional right that all persons enjoy without
qualification.
The above language in Johnson was quoted approvingly
in United States y. Anderson, 498 F.2d 1038, 1042
(D.C. Cir. 1974), Petition for Certiorari 7 A.
In Grunewald, v. United States, 353 U.S. 391 (1957),
a witness before a grand jury investigating corruption in
the Bureau of Internal Revenue declined to answer a
number of questions directed to him\‘on the ground
that the answers would tend to incriminate him.’ The
witness, Mr. Halperin, was later indicted for conspiracy
to defraud the United States with reference to certain
tax matters. At his trial, Mr. Halperin took the stand to
testify in his defense. On cross-examination the
prosecutor brought out for the purpose of impeachment
the earlier invocation of the Fifth Amendment by the
defendant on the subject matter to which he had just
testified. The Court held that under the circumstances
there presented, Halperin’s exercise of the privilege was
wholly consistent with innocence and that it was not
inconsistent with his later trial testimony. The
. Circumstances in Grunewald, 353 U.S. at 422-423,
"A witness does not have the right to ‘remain silent
completely as does an accused. Rather, he must ifivoke the Fifth
Amendment privilege against self-incrimination on a question by
question basis. See MCCORMICK, EVIDENCE § 136 (1972).
®The four concurring Justices would] not have looked to the
circumstances of the case because of aibelief that there are no
__Special_circumstances that would justify the use of a constitu-
tional privilege to discredit a person who asserts it. 353 US. at
425.
ee ven
| 8,
which the majority Jooked to, were: 1) Halperin
maintained that he was ; innocent, 2)he was a
compelled, and not a voluntary, witness, 3) he was not :
represented by counsel, 4)he could summon no
witnesses, 5) he had no opportunity to cross-examine
the witnesses testifying against him, 6) the proceeding
was a secret one, and 7) he was already considered a
potential defendant. The above circumstances are
analogous to the situation of Mr. Hale at the
stationhouse. Thus, it would seem that Grunewald
would be controlling on the question of inconsistency
and that under the circumstances of Hale’s arrest, his
exercise of the privilege was wholly consistent with
innocence and was not inconsistent with his later trial
testimony.
Having decided that Halperin’s exercise of the
privilege lacked probative value as an_ inconsistent
statement or as inconsistent conduct, the Court then
considered whether the introduction of the evidence
was prejudicial. The Court concluded that there was a
danger that the jury impermissibly used the testimony
by equating the exercise of the privilege with guilt even
though they were instructed by the judge that the
evidence was relevant only to credibility. 385 U.S. at
424. Since there was prejudice with “‘grave constitutional
overtones” the Court exercised its supervisory power
over the administration of federal criminal justice to
rule on the matter and reverse the judgment of
conviction.
Hale’s exercise of the privilege at the stationhouse
lacked probative value as an inconsistent statement or
as inconsistent conduct.® The introduction of his
_ evidence was also prejudicial. There was the same
danger present in Hale’s case as in Halperin’s: that the
jury impermissibly used the evidence by equating the
silence of Mr. Hale at the stationhouse with guilt. The
possibility that the jury will infer guilt from such
silence even though they are instructed not to do so is
certainly strong. See Bruno v. United States, 308 U.S.
287 (1939). ;
As Jerome Frank argued, the Fifth Amendment
privilege has gotten an undeserved bad name. In the
public mind, the explicit assertion of the privilege—like
silence in reliance on the privilege—may be a badge of
guilt. Bringing the defendant’s silence before the jury,
for any reason, will create the danger that they will
infer guilt from his reliance on his constitutional right.
United States v. Grunewald, 233 F.2d 566, 575 (2d Cir.
°In addition to finding that the attempted impeachment was
erroneous because potential prejudice outweighed probativity, the
court below held that the error was harmful. The attempted
curative instruction was inadequate, the court said, given ‘the
weak testimony” of the complaining witness and “limited
probity” of the other evidence against Mr. Hale. United States v.
Anderson, 498 F.2d 1038, 1045 (D.C. Cir. 1974); Petition for
Certiorari 13A. The question of the harmfulness of the error split
the court below. See 498 F.2d at 1053-54; Petition for Certiorari
31A-33A (Wilkey, J., dissenting). The government has not sought
review of that question in this Court. Petition for Certiorari n.2;
Brief for the United States n.5. Hence, the government does “not
rely here on any argument that the district court’s caution to the
jury was sufficient to obviate the error, if error there was.”
Petition for Certiorari n.1; Brief for the United States, n.4. But
see Brief for the United States 54.
:
1956) (Frank, .J., dissenting), rev'd, 353 U.S. 391
(1957) :
This danger is drastically increased when the jury
members are solemnly instructed that they may
consider the defendant’s prior silence in assessing his
credibility. Even if they are instructed to consider the
| silence as impeachment evidence only, and not as
evidence of guilt, they surely will draw the imper-
‘ missible inference. The limiting instruction would tell
them, in effect, that they could use the defendant’s
silence to conclude’ that he was lying when he said he
' was innocent but that they were forbidden from using
it to find that he was guilty. This fine distinction is too
much to ask a jury. “Certainly it is inconceivable that
the average untrained jury could successfully perform
such a feat of mental gymnastics.” 233, F.2d at
573, citing with approval, Hinton, 21 ILL.L.REV. 396,
400 (1926).
As the California Supreme Cole ete when
disallowing the impeachment of a defendant by his
invocation of the Fifth Amendment before a grand
jury, in People v. Sharer, 61 Cal.2d 869, 395 P.2d 899,
905, 40 Cal.Rptr. 851 (1964): 7
Even though [evidence of the defendant’s invoca-
tion of the Fifth Amendment] was admitted for
the limited purpose of impeachment, it became
impossible for the jury to separate the “im-
peaching” nature of the evidence from the
inference that defendant refused to answer because
he was guilty. If the evidence did, in fact, impeach
the testimony given at trial, it was only because
the-.defendant was guilty as charged. One fact
could not be true independently of the other.
BSE
21
Such was more than impeachment. It was an
attempt to produce indirect evidence of guilt.
Viewed in that light, the evidence was not limited
to impeachment, but constituted an implication of
guilt, and so was inadmissible under all of the
cases cited by the respondent.'°
Analogous considerations are involved in Stewart y.
United States, 366 U.S. 1 (1961), where the defendant
was on trial for the third time for murder. He had been
tried and convicted for the same offense twice before
but on each occasion the conviction was reversed. At
the third trial, unlike the first two, the defendant took
the stand to testify in his own defense. The defense was
insanity and his testimony was characterized by the
Court as “gibberish without meaning.” The prosecutor
on cross-exatnination brought out the fact that the
defendant had not testificd in his previous two trials,
exercising his right to remain silent. The Court held
that there was no inconsistency between the prior’. .
silence and the testimony offered at trial, and that the ©
question was prejudicial because the jury may ae
drawn any one of several possible adverse inferences:
1)that the defendant had elected to feign this
testimony out of desperation brought on by his failure
In a similar context, this Court has recognized that a jury.
will not follow limiting instructions on the admissibility of an j
involuntary confession. Jackson v. Denno, 378 US. 368, 388:89" -
(1964). In general, when a specific constitutional right is at stake
a defendant must be protected against the possibility that the
jury will disregard the instruction to consider a piece of evidence
for a limited purpose only and not for guilt. Compare Jackson
with Spencer v. Texas, 385 U.S. 554, 564-65 (1967); cf. Loper v.
Beto, 405 U.S. 473, 482 n.11 (1972).
22
to gain acquittal im the two earlier trials, 2) that it was
unlikely that a disease that had manifested itself only
one out of three times at trial was active at the time of
the homicide, or 3) that the defendant's failure to
testify at his earlier trials indicated that his mental
condition was worsening since the time of those trials
and the homicide."'
The United States Courts of Appeals, who have
considered the issue of whether silence at the time of
arrest can be used to impeach a defendant who takes
the stand at trial and offers exculpatory testimony,
have, with the exception of the Third and Fifth
Circuits, held that such impeachment is improper:
a) D.C. Cir. - United States v. Anderson, 498 F.2d 1038
(D.C. Cir. 1974), Petition for Certiorari 1A; Gillison v.
United States, 399 F.2d 586 (D.C. Cir. 1968); b) First
Circuit - Fagundes vy. United States, 340 F.2d 673 (1
Cir. 1965); c)Second Circuit - United States vy.
Semensohn, 421 F.2d 1206 (2 Cir. 1970); See also
United States v. Gross, 276 F.2d 816 (2 Cir. 1960);
d) Sixth Circuit - United States v. Brinson, 411 F.2d
1057 (6 Cir. 1969); e) Ninth Circuit- Fowle v. United
States, 410 F.2d 48 (9 Cir. 1969); f) Tenth Circuit -
Deats v. Rodriquiz, 477 F.2d 1023 (10 Cir. 1973);
Johnson vy. Patterson, 475 F.2d 1066 (10 Cir. 1973).
The Seventh and Eighth Circuits have not yet
considered the issue and the Fourth Circuit has not
‘No cautionary instruction was given in Stewart and as the
Court pointed out:
[T]he danger of the situation would have been increased
by a cautionary instruction in that such an instruction
would have again brought the jury’s attention to
petitioner’s piror failure to testify. [366 US. at 10].
23
directly dealt with the issue. See United States v. White,
377 F.2d 908, 210-11 (4 Cir. 1967) which suggests
such impeachment may be proper. But cf., United
States v, Ghiz, 491 F.2d 599 (4 Cir. 1974).
The Third Circuit has twice considered the issue and
their position is not entirely clear. Agnellino v. New
Jersey, 493 F.2d 714 (3 Cir. 1974); United States ex
rel. Burt v. New Jersey, 475 F.2d 234 (3 Cir. 1973).'?
'2In Burt the defendant was on trial for murder and his
defense was that the shooting was accidental. The defendant had
been arrested for breaking and entering some time after the
shooting had occurred. At that time the police knew of no
connection between Burt and the shooting and Burt never told
them about the shooting. At the trial the prosecutor brought out
on cross-examination that Burt never sought aid for the victim or
told the police about the shooting. The per curiam opinion held
that such impeachment was proper because the silence of Burt
occurred prior to being accused of the crime. The two concurring
judges felt that the silence at the police station was inconsistent
with Burt’s trial testimony and thus could be used to impeach
that testimony.
In Agnellino the defendant was arrested for receiving stolen
goods and his property was successfully searched for a variety of
stolen goods. After receiving his Miranda warnings, the defendant
made certain statements about the goods but did not'say where
he had obtained thetn. At trial the defendant testified that he
had purchased the goods and the prosecutor commented on the
defendant’s failure to tell this to the police when he was ©
arrested. The lead opinion held that such comment on credibility
was permissible, relying on the concurring opinion in Burt. The
other two judges on the panel each wrote concurring opinions,
expressing their view that a comment on the defendant’s silence,
which would have been improper, was not involved in this case;
rather, the impeachment was directed to the differences in the
defendant’s statements after his arrest and his testimony at trial.
Chief Judge Seitz in his concurring opinion viewed Burt as a case
which involved impeachment by the “non-action” of not seeking
assistance for the victim rather than a case of impeachment by
“non-speech.” ;
24
The: Fifth Circuit has considered the use of silence at
the stationhouse to impeach exculpatory testimony on
several occasions. United States v. Fairchild, 505 F.2d
1378 (5 Cir. 1975); United States v. Quintana-Gomez,
488 F.2d 1246 (5 Cir. 1974); Unites States v. Ramirez,
441 F.2d 950 (5 Cir. 1971); Sharp v. United States,
410 F.2d 969 (5 Cir.“1969). Such impeachment was
found to be proper in Quintana-Gomez, Ramirez, and
Sharp, but it was held improper in Fairchild which
limits the holding in the earlier cases.'3
44
'3Quintana-Gomez and Ramirez both involved the defense of
duress: in the former case that others had forced the defendants
to carry cocaine ashore and in the latier that strangers had
forced the defendant to sell heroin. In Fairchild, the defendant
was charged with transporting stolen cars across the state line. He
testified at his trial that he had received the cars from a third
person in what he believed to be a legitimate transaction. This
exculpatory testimony was impeached by his silence at the
stationhouse. The court found the impeachment improper,
stating:
We have held that, in extreme cases, silence following
Miranda warnings can be the type of act which is
inconsistent with certain exculpatory trial testimony. In
such cases evidence of the silence is admissible... . But, to
be admissible, keeping silence must be much more than
PSA It must appear to be an act blatantly
inconsistént with the defendant’s trial testimony. This will
be the case when, as in Ramirez and Quintana-Gomez, the
exculpatory testimony is of such a character that
reasonable men would be left with the distinct impression
that had it been true it would have been related to law
enforcement authorities even though the defendant was
specifically informed that he need not speak.... After
Fairchild had been informed that he had the right not to
speak until his lawyer was present he did what a reasonable
man could be expected to do—he remained silent. [505
F.2d at 1382].
on
25
The Third and Fifth Circuits relied heavily on Harris
vy. New York, 401 U.S. 222 (1971), to justify
impeachment of the defendant’s trial testimony by his
silence at the police station, as does the government in
this case. That reliance is misplaced. The court held in
Harris that a defendant could not remain free to offer
perjurious testimony merely because his admittedly
voluntary statements to police, which contradicted his
testimony, had been given before he received the
Miranda warnings. Two considerations underlie the
Harris decision, and neither is present here. First, the
Miranda exclusionary rule, which was the only bar to
the admissibility of the defendant’s statements, serves
only to motivate the police to give the prescribed
warnings, a purpose that would not be sacrificed if
Statements were let in for impeachment. 401 U.S. at
224; see Michigan v. Tucker, 417 U.S. 433 (1974);
People v. McColor, 36 Mich. App. 455, 194 N.W.2d 99
(1972). More than a prophylactic rule is at stake in the
present case. The defendant’s Fifth Amendment right to
remain silent is involved, because the no comment rule
is an integral part of that right. See Griffin v.
California, 380 U.S. 609, 614 (1965). Second, the
impeachment evidence in Harris was an inconsistent
statement which showed clearly that the defendant was
prejuring himself, and it was the most convincing
evidence of that fact. See 401 U.S. at 225. As discussed
above, the defendant’s silence at the stationhouse is not
inconsistent and shows nothing about his truthfulness at
trial. If the government believes that he perjured himself,
it will need far more convincing evidence of that than the
fact that the defendant remained silent when arrested.
26
In Loper v. Beto, 405 U.S. 473 (1972), the Court
distinguished Harris for similar reasons. There the Court
reversed a conviction because the credibility of the
defendant, who had testified at trial, was impeached by
his prior convictions even though the state obtained
those convictions without respecting the defendant’s
right to counsel. The court noted that ‘“‘[t] his is not a
case where the record of a prior conviction was used
for the purpose of directly rebutting a specific false
statement made from the witness stand.” 405 U.S. at
482 n. 11. Presumably, the court meant that Loper was
not impeached for denying on direct examination the
fact that he had been convicted for prior offenses.
Similarly, the testimony that was impeached in the
present case did not include an assertion that the
defendant had told the police the source of his money.
The cases in the Third and Fifth Circuits, although
they misapply Harris, can be harmonized with the D.C.
Circuit decision in this case. Those cases allowed
impeachment by evasive statements made by defendants
at the time of arrest, see Agnellino v. New Jersey, 493
F.2d 714 (3 Cir. 1974), or blatantly inconsistent
conduct before the defendant was accused of the crime
in issue, see United States ex rel Burt v. New Jersey,
475 F.2d 234 (3 Cir. 1973), or blatantly inconsistent
failure to explain the circumstances, United States v.
Quintana-Gomez, 488 F.2d 1246 (5 Cir. 1974); United
States v. Ramirez, 441 F.2d 950 (5 Cir. 1971); see
United States v. Fairchild, 505 F.2d 1378 (1975).
27
B. The prejudicial effect of the evidence of the
defendant’s prior silence at the stationhouse
violates the privilege against self-incrimination.
When the Court held that a defendant’s trial
testimony was improperly impeached by his invocation
of the Fifth Amendment before a grand jury in
Grunewald yv. United States, 353 U.S. 391 (1957), it
did so in the exercise of its “supervisory power” over
“federal criminal justice”, 353 U.S. at 424, because of
the “grave constitutional overtones” of the issue
presented. 353 U.S. at 423. As explained above, the
court reasoned that the invocation of the privilege
carried little probative weight and that that value was
“far outweighed” by the possible prejudice to the
defendant. 353:'U.S. at 424. This reasoning runs parallel
to the test ordinarily applied to determine the
admissibility of a proposed piece of evidence. See
Fed.R.Evid. 403. Yet the “constitutional overtones” of
that case. have become even graver since it was decided.
In an ordinary question of admissibility, the test of
prejudice of proferred evidence is whether it “may
unduly arouse the jury’s emotions of prejudice,
hostility, or sympathy.” McCORMICK, EVIDENCE
$185, at 439 (1972). The undue prejudice that the
Court feared in Grunewald belonged to a special class.
Thé Court wanted to avoid “the danger that the jury
made impermissible use of the testimony by implicitly
equating the plea of the Fifth Amendment with
guilt... .”” 353 U.S. at 424. At the time that Grunewald
was decided, it had not yet been declared that such
impermissible use constituted a violation of the
self-incrimination clause. The Court had previously held
J
~
28
that a presumption of wrong-doing from the invocation
of the privilege could violate due process because it was
irrational. Slochower v. Board of Higher Education, 350
U.S. 551 (1956), cited in Grunewald with approval, 353
U.S. at 421. Much earlier, the Court had held that a
federal statute prohibited the inference of guilt from a
defendant’s failure to take the stand during his trial for
violation of federal criminal law. Wilson yv. United
States, 149 U.S. 60 (1893); see Griffin v. California,
380 U.S. 609, 612 (1965) (Wilson is a statutory
holding). Given this background, the Grunewald Court
could hold, pursuant to its supervisory power, that the
impeachment of Halperin was improper without neces-
sarily holding that the impeachment was unconstitu-
tional, as a violation of the self-incrimination clause.
Because Wilson settled the matter in federal courts,
the Court was not called upon to decide whether the
inference of guilt from the invocation of the privilege
against self-incrimination violated the self-incrimination
clause until that clause was declared enforceable against
the states in Malloy v. Hogan, 378 U.S. 1 (1964). In
the term following the Malloy decision, the Court held
that the privilege against self-incrimination is violated
when the jury is permitted to infer guilt from the
invocation of that privilege by the accused. Griffin v.
California, 380 U.S. 609 (1965). Griffin elevated
Grunewald to a constitutional holding because it
declared that the impermissible inference that the
Grunewald Court feared would be drawn if the
impeachment were allowed, constituted a violation of
the self-incrimination clause. In short, the impeachment
was improper because it violated the “no-comment”
tule.
ee
aw
29
The attempted impeachment in the present case, like
the impeachment in Grunewald, had but little probative
force. And like the impeachment in Grunewald, it
_prejudiced the defendant by allowing the jury to draw
the impermissible inference of guilt from the invocation
of the privilege against self-incrimination. Thus, under
Grunewald and Griffin, the impeachment, of Mr. Hale’s
trial testimony constituted a violation of the privilege
against self-incrimination.
I.
A DEFENDANT WHO TESTIFIES AT
TRIAL DOES NT RETROACTIVELY
WAIVE HIS CONSTITUTIONAL RIGHT TO
REMAIN SILENT DURING CUSTODIAL
INTERROGATION.
A.The right to remain silent at trial and the
right to remain silent during custodial inter-
rogation are severable rights.
“ ‘Waiver’ is a vague term used for a great variety of
purposes, good and bad, in the law.” Green v. United
States, 355 U.S. 184, 191 (1957). A defendant who
voluntarily takes the stand at his trial necessarily waives
his right to silence at that proceeding; the act of
testifying constitutes the waiver. McCORMICK, EVI-
DENCE §132 (1972). In addition, he waives any right
to conceal during cross-examination his kn wledge of
the facts in issue. E.g., Fitzpatrick v. United States, 178
U.S. 304 (1900). Because the defendant who takes the
stand offers himself as a person who is innocent of
a
30
wrong-doing, but cf. Stewart v. United States, 366 US.
1 (1961), it is logical and constitutionally permissible
for the jury to draw an inference of guilt from evasive
or incomplete testimony. See Caminetti v. United
States, 242 U.S. 470 (1917); People v. Perez, 65 Cal.2d
615, 422 P.2d 597, 55 Cal.Rptr. 909 (1967).
Such a “waiver” does not perforce extend back in
time to a prior invocation of the right to remain silent.
The right to remain silent during custodial interrogation
is a distinct right from the right to remain silent during
trial. The Court recognized that a defendant who
testifies at trial does not by that act retroactively waive
his prior reliance on the privilege against self-
incrimination in Leary v. United States, 395 U.S. 6
(1969). The Court held Leary did not waive his Fifth
Amendment challenge to the Marihuana Tax Act, 26
U.S.C. §§4741 et seq., when he took the stand and
testified concerning the matters he asserted he could
not be compelled to divulge under that Act’s
registration requirements. The Court observed that two
distinct rights were involved. The right that Leary
asserted was “‘not the undoubted right of an accused to
remain silent at trial. It is instead the right not to be
criminally liable for one’s previous failure to obey a
statute which required an incriminatory act.” 395 US.
at 28.
Other courts have used similar reasoning to find that
a waiver of the Fifth Amendment privilege at one
proceeding was not a waiver of the privilege at another.
It has been held, for example, “that a witness... who
testified to a matter before the grand jury did not
thereby waive her right to claim her constitutional
privilege against self-incrimination as to the same
31
subject matter when called as a witness in the
subsequent trial of a person indicted by the Grand
Jury.” In re Neff, 206 F.2d 149, 152 (3 Cir. 1953). See
also United States v. Johnson, 488 F.2d 1206, 1210 (1
Cir. 1973); but see Ellis v. United States, 416 F.2d 791
(D.C. Cir. 1969). The Second Circuit has held that a
witness who waived his Fifth Amendment privilege by
making incriminating. statements to the F.B.I. did not
thereby waive his right to refuse to make the same
statements before a grand jury because ‘“‘a waiver of the
privilege in one proceeding does not affect the rights of
a witness or the accused in another independent
proceeding.” United States v. Miranti, 253 F.2d 135,
139 (2d Cir. 1958). See United States v. Burch, 490
F.2d 1300, 1303 (8 Cir. 1974). And this same principle
will permit a witness to refuse to repeat answers he
made to the same grand jury if there has been a
substantial period of time between his two appearances
and if the grand jury has in the meantime begun to
investigate unrelated crimes. Miranti, 253 F.2d at 140.
Similarly, a defendant who testifies in his own defense
at trial cannot be impeached for his earlier silence at
the preliminary hearing, People v. Jordan, 7 Mich. App.
28, 151 N.W.2d 242 (1967), nor by his invocation of
the privilege when called as a witness in the earlier trial
of a co-defendant, Dean v. Commonwealth, 209 Va.:
666, 166 S.E.2d 228 (1969). See also the discussion of
the severability of the right to remain silent at arrest
and the right to remain silent at trial in People vy.
Rolston, 31 Mich. App. 200, 187 N.W.2d 454 (1971). —
_There is no sound reason why a defendant who elects
to testify should be deemed to have waived his right to
32
remain silent during custodial interrogation.'* The fact
that a defendant maintained silence during custodial '
interrogation sheds no light on his credibility as a
witness, at least on the facts of this case. See Argument
I.A., supra. A defendant’s assertion on the witness stand
that he is innocent is “perfectly consistent’ with his
earlier desire not to talk to the police. Cf. Leary y.
United States, 395 U.S. 6, 28 (1969). An uncounseled
-arrestee is entitled to maintain his silence at the
stationhouse: because his statements, though consistent
,with his innocence, might provide evidence against him,
cf. Grunewald v. United States, 353 U.S. 391, 421-22
(1957); because he fears that the coercive circumstances
of custodial interrogation will cause him to misstate the
facts or will result in a misinterpretation of. his words,
cf. Miranda yv. Arizona, 384 U.S. 436, 466 (1966);
because the arrestee realizes that unlike a subpoenaed
witness, he is under no duty to speak, United States v.
Brinson, 411 F.2d 1057, 1060 (6 Cir. 1969); or because
he has been expressly warned that he has an absolute
right to remain silent, Miranda v. Arizona, 384 US.
436, 468 (1966); cf Johnson v. United States, 318 ‘US.
189, 197 (1943). Preservation of these protections of
the privilege against self-incrimination requires that an
accused not be penalized for the exercise of his rights
and not be compelled or encouraged to abandon the
shield of silence. Cf. Brooks v. Tennessee, 406 U.S.
14 See Federal Rules of Evidence, Rule 608(b):
The giving of testimony, whether by an accused or by any
other witness, does not operate as a waiver of his privilege
against self-incrimination when examined with respect to
matters which relate only to credibility.
33
605, 611 n.6 (1972); United States v. Jackson, 390
U.S. 570, 583 (1968). :
B. The present case is not controlled by the é
Court’s decision in Raffel v. United States,
271 U.S. 494 coin
In 1926 the Court held that the privilege against
self-incrimination, permitted certain impeachment by a
defendant’s invocation of his Fifth Amendment right.
Raffel v. United States, 271 U.S. 494 (1926). At the
defendant’s first trial, a government agent testified,
attributing an incriminating statement to the defendant;
-who did not take the stand to deny the attribution.
The trial ended with a hung jury. When the defendant
was retried, the agent repeated his testimony, but the
defendant took the stand and denied having made the
statement. The Court’ held that the Constitution was _
not violated when the government impeached his
testimony at the second trial by the et that he
remained silent at the first.
Raffel, however, is not controlling in the present
case. The Raffel Court observed that: the rule it was
adopting would not deter defendants at their first trial
from remaining silent because the possibility of a
second trial would then seem remote, and they would ©
feel far greater pressure to testify at the first trial from
the fact that the jury would observe their silence and
could draw the impermissible inference of guilt from
this observation. 271 U.S. at 489-499. The present case
involves silence at the. stationhouse. followed by
testimony at trial. There is less reason to find that
—
--—
shedding the privilege at trial should mean forfeiting it
at the stationhouse. A defendant who has just been,
arrested will be fully conscious of the very teal
possibility of a jury trial. Extension of the Raffel rule
would thus create a significant pressure on the accused
to speak at the stationhouse from fear that his silence
will be used to impeach his testimony at his later trial.
And the accused at the police station will experience no
pressure comparable to the pressure to testify that a
defendant at his first trial will feel from the fear that a
jury will infer guilt from silence. Consequently, that
pressure arising from the possibility of later impeach-
ment will make a real difference at the stationhouse,
while it is unlikely to play a significant role at a first
trial. :
The specific holding of Raffel was limited in Stewart
v. United States, 366 U.S. 1 (1961), to situations in
which a defendant at his first trial has failed to deny a
statement that a witness has attributed to him but takes
the stand at his second trial to deny making the
statement. Otherwise there is no “specific testimony”
to impeach by the defendant’s prior silence, and the
impeachment is impermissible as involving only “general
credibility.” 366U.S. at 6, 7 n.14. The present case
simply is not within Raffel as so limited. See People v.
Bobo, 390 Mich. 355, 212 N.W.2d 190, 192 (1973).
In recent years the Court has not once followed
Raffel. It has confined that case to its particular facts.
In Grunewald v. United States, 353 U.S. 391 (1957),
the Court-sinanimously refused to follow Raffel and
held improper the impeachment of a defendant's trial
testimony by his assertion of the privilege against
self-incrimination before a grand jury. Four members of
34
35
the Court were prepared to declare Raffel overruled.
353 U.S. at 423 (Black, J., concurring). Five members
of the Court, apparently preferring not to reach
constitutional issues if other grounds for decision could
be found, held the impeachment improper, finding that
the trial testimony of the defendant was not sufficient-
ly inconsistent with his prior invocation of the privilege,
353 U.S. at 420-22.
Again in Stewart v. United States, 366 U.S. 1 (1961),
the Court did not follow Raffel. A defendant in a
homicide prosecution, whose only defense was insanity,
took the stand apparently in order to demonstrate his
unsound mind. His testimony was incoherent. The
government confronted him on cross-examination with
the fact that he had not taken the stand at prior trials
for the same offense. As in Grunewald, the Court held
that there was no inconsistency between the prior
silence and the testimony offered at trial. ““There was
no specific testimony to impeach.” 366 U.S. at 6. Nor.
was the error harmless because the impeachment could
have led the jury to infer that the defendant was
feigning insanity or that he had developed a mental
disease after the homicide. Three dissenting members of
the Court apparently agreed generally with the
majority’s legal analysis but disagreed with the
majority’s reading of the record. 366 U.S. at 11
(Frankfurter, J.).
Raffel should be declared overruled. Indeed, it has
been argued that Raffel was overruled a generation ago
in Johnson v. United States, 318 U.S. 189 (1943). See
Grunewald v. United States, 353 U.S. 391, 426 (1957)
(Black J., concurring); United States v. Grunewald, 233
F.2d 556, 574-75 (2 Cir. 1956) (Frank, J., dissenting).
36
*
In addition to limiting Raffel to its own facts, the -
decision in Stewart implicitly overruled Raffel on all
but its own facts. The cross-examination of Stewart’s
trial testimony was plainly probative because it
undercut the inference that his counsel sought the jury
to draw from listening to it, that Stewart was insane at
the time of the crime. This probativity was the reason
that the Court could find that the cross-examination
was prejudicial, because it supported. a_ rational
inference that the insanity displayed on the witness
stand was feigned or that it had developed only after
the crime. 366 U.S. at 8-9. Even though there was no
“contradiction” of the trial testimony in any literal
sense, it is thus clear that the cross-examination
rationally undercut Stewart’s “testimony.” Therefore,
when the Court held that the cross-examination was
improper the underlying reason must have been that it
violated the privilege against self-incrimination. And a
necessary assumption for this conclusion: is_ that
Stewart’s act of taking the stand did not retroactively
“waive” the protection of the Fifth Amendment as to
his silence at his prior trials. Hence, unless prior silence
is used to impeach some “specific testimony”—i.e.,
unless it is used to impeach a defendant’s denial of a
statement attributed to him, as in Raffel—Stewart
suggests that there is no waiver of a prior invocation of
the privilege.
Any life still lingering in Raffel expired after this
Court’s decision in Griffin v. California, 380 U.S. 609
(1965). As asserted above, Griffin elevated Grunewald
to a constitutional holding because the Griffin Court
held that the inference of guilt from a defendant’s
invocation of the privilege is unconstitutional and
—_
K
because the Grunewald Court had found the impeach-
ment improper because just such an inference would be
drawn. See Argument I.B., supra. For the same reason,
Griffin implicitly overruled Raffel. Impeachment of the
defendant in Raffel, like impeachment of the defendant
in Grunewald, by his prior reliance on the privilege
would permit the jury to use his exercise of a
constitutional right not only to judge credibility but
also to infer guilt. Under Griffin, impeachment of
Raffel imposed an impermissible penalty on_ that
right.'* As suggested below, other recent cases striking
down penalties on the exercise of constitutional rights
require a finding that the impeachment in the present -
case was unconstitutional, see Argument IV, A and C
infra, and for similar reasons they have implicitly
overruled Raffel. See, eg., Brooks v. Tennessee, 406
U.S. 605 (1972).
'SPrior to Griffin, this Court had not held that an inference of
guilt from a defendant’s failure to take the stand violated the
privilege against self-incrimination. The Court had held that a
federal statute prohibited such an inference in federal courts.
Wilson v. United States, 149 U.S. 60 (1893). Significantly, Raffel
fails to discuss or even to cite Wilson, probably because Raffel
was decided at a time when the Supreme Court was “manifesting
a marked hostility to the constitutional privilege and [was]
severely modifying its scope.” United States v. Grunewald, 233
F.2d 556, 577 (2 Cir. 1956) (Frank, J., dissenting). The Raffel
Court said that it could “concede, without deciding,” that uniess
a defendant testified, evidence of his prior silence “would be
probative of no fact in issue, and would be inadmissible,” 271
_ US. at 497, yet this “assumption” would seem to be compelled
by the Court’s holding in Wilson. It is thus open to substantial
doubt whether Raffel is consistent even with Wilson. See 233
F.2d at 572-73.
38
iil.
IT IS UNFAIR TO THE UNCOUNSELED
ACCUSED WHO HAS BEEN GIVEN THE
MIRANDA WARNINGS TO IMPEACH HIS
TRIAL TESTIMONY WITH HIS SILENCE
AT THE STATIONHOUSE.
An arrested accused is'informed by the police that he
has the right to remain silent, that anything he says can
be used against him, that he has the right to consult
with a lawyer and to the presence of a lawyer during
questioning, and that if he cannot afford a lawyer, one
will be appointed to represent him prior to any
questioning. Allowing an accused who elects to exercise
his rights and remain silent until he speaks with a
lawyer, to be impeached with his silence when he takes
the witness stand at trial is grossly unfair. The message
that the police give the accused is not only that if he
speaks, his words may be used against him, but also the
converse—that if he remains silent, his silence will not
be used against him. When an accused is told that he
has the right to remain silent, the natural import of the
warning is that his silence will not be used against him.
It is an unnatural act'® for the accused to talk after the
police have told him that if he talks he may damage his
case but if he keeps silent, he will not be penalized."’
16See generally 8 WIGMORE, EVIDENCE §2251 (McNaugh-
ton rev. 1961) 317.
\7The Miranda warnings could be viewed as a promise by the
police that the accused’s silence won't be used against him. The
accused may rely on that implied promise and remain silent. If
that is the case and his silence is later used against him at trial
. .
pages AY,
ee ee ws ane ee SEIT ree ee eee ° Rs Se
39
An uncounseled accused receiving the Miranda
warnings will not understand them to mean that if he
remains silent the prosecutor may bring that fact to the
attention of a jury by impeacing the accused’s trial
testimony. This fact was recognized many years ago in
McCarthy v. United States, 25 F.2d 298, 299 (6 Cir.
1928), where it was stated that if the silence of the
accused was to be used against him, he should be
warned: “If you say anything, it will be used against
you; if you do not say anything, that will be used
against you.”’ This position has received recent support.
United States.v. Anderson, 498 F.2d 1038 (D.C. Cir.
for impeachment purposes, the situation becomes analogous to
the use of an involuntary confession for impeachment.
A confession may be involuntary because coerced by threats
or by promises of leniency. See MCCORMICK, EVIDENCE § 150
(1972). Even very slight promises made by the police may render
a confession involuntary. See Malloy v. Hogan. 378 U.S. 1, 7
(1964); Bram v. United States, 168 U.S. 532 (1897). An
involuntary confession cannot be used for purposes of
impeachment because it is of questionable trustworthiness.
People v. Reed, Mich. , 224 N.W.2d 867, 872-873
(1975); State v. Smith, 242 Ore. 223, 408 P.2d 942, 944 (1965).
In Harris v. New York, 401 U.S. 222, 224 (1971), the Court
stated: “Petitioner makes no claim the statements made to the
polics were coerced or involuntary.” Harris allowed statements
secured without giving the Miranda warnings to be used for
impeachment purposes “provided of course that the trustworthi-
ness of the evidence satisfies legal standards.” 401 U.S. at 224.
The use of silence to impeach after an implied promise that it
would not be used may be equivalent to the use of a statement
to impeach after an implied promise that it would not be used.
Such a statement may amount to an involuntary confession
which could not be used to impeach. Silence should be treated
the same.
40
1974), Petition for Certiorari I A; Johnson v. Patterson,
475 F.2d 1066 (10 Cir. 1973); United States v.
Brinson, 411 F.2d 1057 (6 Cir. 1969); Fowle v. United
States, 410 F.2d 48 (9 Cir. 1969).
Concern about the lack of a similar warning was
involved in Johnson v. United States, 318 US. 189
(1943). In that case the defendant was on trial for
income tax evasion during the years 1936 and 1937.
The defendant, who took the stand in his defense, was
asked on cross-examination about illegal sources of
income in 1938. After he asserted his Fifth Amendment
privilege the trial judge ruled that he need not answer
the question, and the defendant refused to do so.
However, in closing argument the prosecutor was
allowed to comment on the exercise of the privilege
insofar as it affected the credibility of the defendant.
The Court stated:
The ruling of the court gave the petitioner the
choice between testifying and refusing to testify as
to his 1938 income. An accused having the
assurance of the court that his claim of privilege
would be granted might well be entrapped if his
assertion of the privilege could then be used
against him. His real choice might then be quite
different than his apparent one. Elementary
fairness requires that an accused should not be
misled on that score. If advised by the court that
his claim of privilege though granted would be
employed against himself, he well might never
claim it. If he receives assurance that it will be
granted if claimed, or if it is claimed and granted
outright, he has every right to expect that the
ruling is made in good faith and that the rule
against comment will be observed . ...
41
&
....The problem here is....whether a pro-
cedure will be approved which deprives an accused
on facts such as these of an intelligent choice
between claiming or waiving his privilege. Know-
ledge that a failure to testify though permitted by
the court would be submitted to a jury might
seriously affect that choice. If the accused makes
the choice without that knowledge, he may well
be misled on one of the most important decisions
in his defense. [318 U.S. at 197-199].
Similar considerations of fairness were involved in
People v. Ellis, 65 Cal.2d 529, 421 P.2d 393, 55
Cal.Rptr. 385 (1966) where the accused, who was
under arrest, prior to being placed in a lineup, was told
that he had the right to remain silent and that anything
he said could be used against him. When asked at the
lineup to speak for a voice identification, he refused.
This refusal was introduced into evidence to show a
consciousness of guilt. In holding that it would be
unfair to introduce evidence of the refusal to speak, the
court stated:
This warning did not distinguish between speech
in terms of communication and speech for voice
identification, between a refusal to speak free from
sanctions and a refusal to speak productive of
detrimental inference. That distinction would
hardly occur to a layman unless it was called to
his attention. Thus, defendant’s refusal to speak
might well have been the direct result of the police
- warning and cannot be used against him.....
.... After ¢iaving given such a warning, if the
police direct a defendant to speak for voice
identification and he refused, they must, as a
prerequisite to the use of the defendant’s refusal
to speak as evidence of consciousness of guilt,
42 _
advise him that the right to remain silent does not
include the right to refuse to participate in such a
test. [421 P.2d at 398-399}.
Another reason why it would be unfair to introduce
evidence of stationhouse silence to impeach the trial
testimony of the accused is that the police would then
possess a device that would allow them to elicit
incriminating evidence from arrested and uncounseled
innocent and guilty alike. Cf., 87 HARV.L.REV. 882,
887, n. 34 (1974). The police would be in a position to
tell persons they have arrested that unless they explain
while they are in custody the incriminating circum-
stances that led to their arrest, no jury will believe their
explanations at trial. In Miranda, the Court discussed
coercive police tactics and noted that the police were
instructed to engage in tactics similar to those described
above. The Court observed’ that such tactics subverted
the privilege against self-incrimination:
The manuals also contain instructions for the
police on how to handle the individual who refuses
to discuss the matter entirely, or who asks for an
attorney or relatives. The examiner is to concede
him the right to remain silent: “This usually has a
very undermining effect. First of all, he is
disappointed in his expectation of an unfavorable
reaction on the part of the interrogator. Secondly,
a concession of this right to remain silent
impresses the subject with the apparent fairness of
his interrogator.” After this psychological
conditioning, however, the officer is told to point
out the incriminating significance of the suspect’s
refusal to talk:
“Joe, you have a right to remain silent. That’s
your privilege and I’m the last person in the
43
world who’ll try to take it away from you. If
that’s the way you want to leave this, O.K.
But let me ask you this. Suppose you were in
my shoes and I were in yours and you called
me in to ask me about this and I told you, ‘I
don’t want to answer any of your questions.’
You’d think I had something to hide, and
you’d probably be right in thinking that.
That’s exactly what I'll have to think about
you, and so will everybody else. So let’s sit
here and talk this whole thing over.”
Few will persist in their initial refusal to talk, it is
said, if this monologue is employed correctly. [384
U.S. at 454, citations omitted].
Indeed, such tactics are not very far removed from
those employed by the Star Chamber and the High
Commission. The accused, who has not yet been
formally charged, is placed in a position where he is
submitted to interrogation without the aid of counsel.
If he answers the questions he risks incriminating
himself and if he does not answer the question, his
silence may be used against him. This danger is
illustrated in the case of People v. Sharer, 61 Cal.2d
869, 395 P.2d 899, 40 Cal.Rptr. 851 (1964), where the
accused was charged with assault with intent to commit
murder. He was called before a grand jury investigating
the crime and was asked whether he had committed the
assault. He involed his Fifth Amendment privilege and
refused to answer the question. At his trial the
defendant testified in his defense and was impeached by
his prior refusal to answer. In holding the impeachment
evidence inadmissible the Court discussed the effect of
allowing such impeachment:
44
If answers to such [questions by the grand jury]
were refused on the ground of self-incrimination,
the testimony at trial would necessarily be
intonsistent. If answers’ were refused without
statement of the privilege, that fact would be
alleged as an adoptive admission. If the questions
were answered, attempt would be made to use the
answers to convict. Thus, the district attorney was
knowingly placing the accused in a dilemma not
contemplated by the law. Such procedure is
suspect as a calculated trap whereby the prosecu-
tor could force the accused to incriminate himself
by thelvery refusal to do so. [395 P.2d at 905].
Thus, the rule the government séeks would at the very
least relieve the government of its burden “to shoulder
the~entire load.” Murphy v. Waterfront Commission,
378 U.S. 52, 55 (1964). +4
The government argues that there is a benefit to the
accused who is innocent to immediately tell the police
his explanation of the suspicious circumstances that led
to his arrest. Brief for the United States, 33. If he does
so, the police can “independently verify” the suspect’s
account and will release him. A similar argument was
raised in Miranda and the Court there stated:
It is also urged that an unfettered right to
detention for interrogation should be allowed
because it will often redound to the benefit of the
person questioned. When police inquiry determines
that there is no reason to believe that the person
has committed any crime, it is said, he will be
released without need for further formal pro-
cedures. The person who has committed no
offense, however, will be better able to clear
himself after warnings with counsel present than
45
without. It can be assumed that in such
circumstances a lawyer would advise his client to
talk freely to police in order to clear himself.
Custodial interrogation, by contrast, does not
necessarily afford the innocent an opportunity to
clear themselves. [384 U.S. at 482].
In this case, Mr. Hale had been identified by the
victim as one of the men who had robbed him and Mr.
Hale had fled from the police. (Tr. 39-40) Assuming
that Mr. Hale had told the police he received the
-money found on him from his wife, it is absurd to
suggest that the police, even if they had verified this by
speaking to Mrs. Hale, would have released Mr. Hale.
The government argues that modifying the Miranda
warnings to include the information that if the accused
remained silent, that fact can be used to impeach
exculpatory testimony offered by the accused at trial,
will confuse an accused about his constitutional rights.
Brief for the United States, n. 14. Respondent agrees.
Indeed, such a rule would make the right to counsel
prior to questioning even more important than it is
now.'® In order to protect the accused’s right to remain
'®One can ‘well imagine an innocent accused who is informed
of the possible use of silence to impeach being compelled by- that
fact to reveal circumstances that, though consistent with his
innocence, might constitute evidence against him or lead to the
discovery of such evidence. Such compulsion is forbidden. See
Grunewald v. United States, 353 U.S. 391, 421-22 (1957); ef.
Hoffman v. United States, 341 US. 479, 486 (1951). For
example, a person arrested for homicide who killed in
self-defense should be free to maintain his silence during police
custody. If he could be pressured into revealing the circum-
stances of the killing, his statements, though consistent with his
innocence, would certainly be incriminating evidence. In addition,
46
silent and to insure fair treatment of the accused by the
police at the stationhouse, the best policy would be to
continue the Miranda watnings in their present form :
and disallow the impeachment use of defendant’s
silence. :
the excitement created by the arrest and the coercion inherent in ‘
custodial interrogation make it likely that an innocent defendant
who is compelled to explain himself will misstep and either
incriminate himself directly or contradict his later truthful
testimony at trial. See generally Driver, Confessions and the
Social Psychology of Coercion, 82 HARV.L.REV. 42 (1968). A
further danger is that the police will misinterpret the words of
the accused and testify inaccurately about what was actually ~
said. Silence, on the other hand, is silence.
The rule the government seeks would also permit the police to
coerce guilty defendants into confessing by exploiting their
ignorance of the law and mistaken belief in their innocence. An
example of such exploitation is described in Escobedo v. MMlinois,
378 US. 478 (1964). Police in that case persuaded the accused
during custodial interrogation that it’ would be to his advantage
to pin the homicide in question on his companion, exploiting his
ignorance of the fact that his “exculpating” statement made him
fully liable as his companion’s accessory. See 378 U.S. at 482-83,
486. One can imagine the police giving Miranda warnings but
advising a defendant in Escobedo’s position that unless he gave
his full explanation to them, a jury would never believe his
testimony at trial that his companion had held the gun.
47
IV. =
IMPEACHING THE DEFENDANT'S TRIAL
TEST IMONY BY HIS SILENCE IN THE
FACE. OF ‘CUSTODIAL INTERROGATION
IMPOSES AN IMPERMISSIBLE PENALTY
_ ON HIS RIGHT TO REMAIN SILENT.
_- A. Allowing comment on the defendant’s as-
sertion of the privilege penalizes the privilege
by making its assertion costly.
In, Griffin v. California, 380 U.S. 609 (1965), the
Court ‘held that the Fifth Amendment privilege against
self-incrimination was violated when a prosecutor
argued that the defendant’s silence at trial indicated his
guilt and when the judge instructed the jury that they
could draw this inference. Such comment is “a remnant
of the ‘inquisitorial system of criminal justice,’ ” “isa
penalty ' imposed by the courts for exercising a
constitutional privilege,” and “cuts down on the
privilege by making its assertion costly.” 380 U.S. at
614. See also Wilson y. United States, 149 U.S. 60
(1893) (statutory “no comment” rule in federal
prosecutions). ; ,
In Miranda y. Arizona, 384 U.S. 436 (1966): this
Court held that the privilege against self-incrimination
guaranteed the right of a defendant in a state
Prosecution to remain silent during custodial inter-
: Fogation at the police stationhouse, thus applying to the
states a rule that had long before’ been held applicable
to the, federal government. Bram v. United States, 168
U.S. 532 (1897): see generally Michigan v. Tucker, 417
US. 433, “41 and n. 15 (1974). As the Miranda Court
48
indicated, a necessary corollary of its holding was that
the Griffin “no comment” rule must apply to silence at
the stationhouse:
In accord with our decision today, it is
impermissible to penalize an individual for exer-
cising his Fifth Amendment privilege when he is
under police custodial interrogation. The prose-
cution may not, therefore, use at trial the fact that
he stood mute or claimed his privilege in the face
of accusation. Cf. Griffin v. California, 380 U.S.
609 (1965) [384 U.S. at 468 n. 37].
The “no comment” ‘rule is, if anything, more
' important to the integrity of the privilege during
custodial interrogation than at trial. A jury will be
aware of ‘the fact that a defendant has mot testified
even if it is not drawn to their attention. Griffin v.
California, 380 U.S. 609, 621 (1965) (Stewart, J.,
dissenting). They possess the knowledge and the power
to draw the impermissible inference of guilt from the
defendant’s silence even if they are instructed to ignore
it. See Bruno vy, United States, 308 U.S. 287, 293
(1939). In contrast, a jury will ordinarily have no way
of knowing that a defendant was silent during custodial
interrogation unless the prosecutor violates the no
comment rule by introducing evidence on this fact.
Lower federal courts have uniformly held that a
defendant’s silence during custodial interrogation cannot
constitutionally be admitted on the question of guilt.
E.g., United States v. Ghiz, 491 F.2d 599 (4 Cir. 1974);
United States v. Kroslack, 426 F.2d 1129 (7 Cir. 1970);
United States v. Arnold, 425 F.2d 204 (10 Cir. 1970);
United States ex rel, Smith v. Brierly, 384 F.2d 992 (3
Cir. 1967); United States v. McKinney, 379 F.2d 259
f
49
(6 Cir. 1967); Helton v, United States, 221 F.2d 338 (5
Cir. 1955); United States v. Lo Biondo, 135 F.2d 130
(2 Cir. 1943). There is no sufficient reason to make an
exception for comment in the form of impeachment of
a defendant’s testimony at trial.
The defendant who takes the stand will suffer a
penalty if the government is allowed to impeach his
testimony by his silence during police interrogation, and
this penalty is as heavy as the penalty a non-testifying
defendant would suffer if the government used his prior
silence in its case-in-chief.'® Even if the judge instructs
the jury that they may consider the silence only as
impeachment evidence and not as evidence of guilt,
there is the danger that the jury will draw the inference
of guilt that was held unconstitutional in Griffin.
Grunewald yv. United States, 353 U.S. 391, 424 (1957);
see Argument I.A. supra.
In Miranda, the Court held that if the accused made
statements during custodial interrogation without having been
advised of his rights and without specifically waiving them, the
Statements must be excluded from use at trial whether
exculpatory or inculpatory. It was stated at 384 U.S. at 477:
In fact, statements merely. intended to be
exculpatory by the defendant are often used to
impeach his testimony at trial or to demonstrate
untruths in the statement given under inter-
rogation and thus to prove guilt by implication.
These statements are incriminating in any
meaningful sense of the word and may not be
used. ... .
If silence at arrest is used to impeach the defendant’s trial
testimony, it would “prove guilt by implication” though the
silence in fact sheds no light on his credibility.
—
50
B. Allowing impeachment of a defendant’s trial
testimony by his silence at the stationhouse
would put impermissible pressure on _ the
privilege against self-incrimination at the time
of arrest.”°
If prosecutors are permitted to impeach defendants
by their prior silence, and if juries are instructed that
they may disbelieve a defendant’s trial testimony
merely because he was silent when arrested, then the
right to testify at trial will be undercut. This right is
protected by the Constitution and, in federal courts, by
statute. Ferguson vy. Georgia, 365 U.S. 570, 602-03
(1961) (Clark, J., concurring); 18 U.S.C. §3481 (1970).
The present case is analogous to Brooks v. Tennessee,
406 U.S. 605 (1972). In that case the Court held
unconstitutional a state procedure that required a
defendant to testify immediately after the close of the
government’s case, before he had presented any other
evidence, or to forfeit his right to testify. 406 U.S. at
606. This procedure was infirm because ‘it imposed a
penalty on the defendant’s exercise of his right to
remain silent. by depriving him of his right to testify.
“(T]he Tennessee rule imposed a_ penalty for
petitioner’s initial silence, and that penalty constitutes
the infringement of the right.”” 406 U.S. at 611 n.6.
Although the Court recognized some state interest “‘in
preventing testimonial influence,” this was held insuf-
ficient to validate the penalty. 406 U.S. at 611. The
See generally Spevack v. Klein, 385 U.S. 511 (1967);
Garrity v. New Jersey, 385 U.S. 493 (1967); Argument III, supra
at n. 18.
51
same interests are at stake in the present case. Here,
too, the government is seeking to penalize a defendant
for the exercise of his right to remain silent by
depriving him of the full benefits of his right to testify.
The defendant’s Fifth Amendment interests at stake in
the present case are, in fact, weightier than those at
stake in Brooks. There the question was one of timing
the decision to testify at trial; a defendant who could
wait until the close of his case to decide whether or not
to testify could better judge the tactical advantages
than could a defendant whe was required to make this
decision before he learned how well the rest of his case
had gone. See 406 U.S. at 609. If the government
obtains the rule it seeks in the present case, then a
defendant who seeks to preserve his full right to testify
at trial will have to provide the government, at the time
of his arrest, with information that will relieve it of its
burden “to shoulder the entire load,” and will have to
surrender his right to silence insofar as it is “‘a
protection to the innocent.”’ See Murphy v. Waterfront
Commission, 378 U.S. 52, 55 (1964). In addition, this
_ decision at the stationhouse must be made without “the
guiding hand of counsel.’”’ Cf. Escobedo y. Illinois, 378
U.S. 478, 486 (1964).
Another analogy can be found in this Court’s
‘decision in Loper v. Beto, 405 U.S. 473 (1972). There
the Court reversed a conviction because the defendant’s
trial testimony was impeached by his prior convictions,
‘gilthough the state had obtained those convictions at a
trial in which the defendant was denied his right to
counsel. 405 U.S. at 474-77; see Gideon v. Wainwright,
372 U.S. 335 (1963). There the government benefited
from the fact that it had denied a defendant his
52
constitutional right to counsel, see 405 U.S. at 482;
here the government exploited the fact that the
defendant exercised his constitutional right to silence.
There, the impeachment evidence was unreliable
because the convictions had been obtained without
counsel, 405 U.S. at 483-84; here the impeachment
evidence was unreliable because the defendant was
silent in the exercise of constitutional rights that he had
been specifically told he could assert.
C. Permitting impeachment of a defendant's trial
testimony by his silence at the time of his
arrest would unconstitutionally require the
defendant to elect between constitutional
rights.
If a defendant testifies at a motion to suppress
evidence allegedly seized in violation of the Fourth
Amendment, the government is barred from using this
testimony against him at trial because if such use were
allowed, a defendant would be required to choose
between his Fourth and Fifth Amendment rights: he
could not exercise both. Simmons y. United States, 390
U.S. 377, 392 (1968). See also United States y.
Carignan, 342 U.S. 36, 38 (1951) (defendant has right
to testify outside jury’s presence on motion to suppress
confession); cf. Jackson v. Denno, 378 U.S. 368, 389 n.
16 (1964). Similarly, a parolee must be permitted the
opportunity to speak on his own behalf at his
revocation hearing without the fear that the government
‘will use his statement against him in a subsequent trial.
Melson v. Sard, 402 F.2d 653, 655 (D.C. Cir. 1968).
53
And the government may not use the substance of a
defendant’s testimony in support of an application to
obtain appointed counsel against him at trial because
such use would require an unconstitutional election
between Fifth and Sixth Amendment rights. United
States v. Branker, 418 F.2d 378, 381 (2 Cir. 1969).
Nor can the Eighth Amendment right to bail be made
contingent on a waiver of the Fifth Amendment
privilege against self-incrimination. Cf. Noto v. United
States, 76 S.Ct. 255 (Harlan, Circuit Justice, 1955). The
defendant in the present case exercised his Fifth
Amendment right to remain silent. The government’s
attempted impeachment denied him the full enjoyment
of his due process right to testify on his own behalf.
See Ferguson v. Georgia, 365 U.S. 570, 602-03 (1961)
(Clark, J., concurring). If such impeachment is
permitted, then defendants will be required to choose
between rights: they can enjoy the right to testify at
trial or the right to remain silent at the stationhouse,
but they cannot exercise both fully. The Court held
just such a choice unconstitutional in Brooks y.
Tennessee, 406 U.S. 605 (1972).
A contrary result is not required by .the Court’s
decision in McGautha v. California, 402 U.S. 183
(1971). There the Court held that the Constitution did
not require. the state of Ohio to hold a bifurcated trial
in capital cases where juries were allowed to fix
punishment at life imprisonment or. death. The
defendant Crampton argued that a unitary _ trial
compelled him to choose between his right to remain
silent on the question of guilt and his asserted due
process right to address the jury personally on the
question of punishment. 402 U.S. at 208-09. The most
_,
54
salient difference between this case and McGautha is
that the rule the defendant seeks in this case would not
put any burden on the state judicial systems. This
difference is one reason that the McGautha Court did
not deem Simmons controlling and chose not to follow
United States v. Jackson, 390 U.S. 570 (1968). The
Jackson Court held unconstitutional a federal kid-
napping act that permitted a defendant who was
convicted after trial by jury to be put to death but
imposed a maximum punishment of life imprisonment
on a defendant who pled guilty or who waived his right
to a jury trial and was convicted by the court. See 390
U.S. 581. This procedure violated a defendant's Sixth
Amendment right to trial by jury and Fifth Amend-
ment right not to be compelled to plead guilty. The
procedure’s effect was “to chill the assertion of
constitutional rights by penalizing those who choose to
exercise them” and to “impose an impermissible
burden” on a defendant’s right by “needlessly
encourag/ing/”” guilty pleas. 390 U.S. at 581, 583
(emphasis in original). The primary distinction between
McGautha and Jackson seems to be that the latter, like
Simmons, would not require radial surgery on state
court procedures. Instead of following Simmons,
McGautha followed Spencer v. Texas, 385 U.S. 554
(1967). Like Crampton the defendant in Spencer
unsuccessfully sought to impose a system of bifurcated
trials on the states, see 385 U.S. at 562, by withholding
from the jury information of prior convictions, to be
used in sentencing, until the jury returned a verdict on
the question of guilt.
The McGautha Court stated that the “threshold
question” concerning the validity of a requirement that
-
55
a defendant choose between constitutional rights was
“whether compelling the election impairs to an
appreciable extent any of the policies behind the rights
involved.” 402 U.S. at 213. The election Crampton was
required to make survived this test because it was
virtually indistinguishable from many other tactical
decisions that must be made at trial. The pressure on a_
defendant to take the stand because of his desire to
speak or the issue of punishment is much like the
pressure a defendant will feel to testify because of the
force of the government’s case against him. 402 U.S. at
213. And the pressure a defendant will feel to forego
the opportunity to speak on punishment is like the
pressure a defendant will feel to avoid testifying on
guilt because of the possibility of damaging cross-
"examination and impeachment and because the tésti-
mony might mean waiver of his motion for judgment of
acquittal. 402 U.S. at 21415. The choice that the
government would require a defendant to make in the
present case cannot be analogized to such decisions of
trial tactics. The defendant in this Gase had just been
arrested, was in police custody at the stationhouse, and
was unrepresented by counsel. The government’ has
conceded that the defendant could make no such
tactical choice; awareness of the factors involved in the
choice the government would require him to make
would, the government asserts, merely “tend to confuse
an arrestee about his constitutional rights... .” Brief
for the United States at 39 n. 14.
The fact of the matter is that the defendant in the
Present case made no election to compromise his right
to testify at trial when he remained silent at the
Stationhouse after he was warned of his right to silence
~
56
and that any statement could be used against him. .
Appendix 4. He remained silent without any warning
that this silence would compromise his right to testify.
Under the doctrine of Johnson v. United States, 318
U.S. 189 (1943), it was improper to impeach the
defendant’s trail testimony by the fact that he exercised a
right that he had been officially told he could exercise,
even if such impeachment would have been proper had
the defendant been warned of this consequence of his
decision to exercise the right. It is no answer to argue
that an uncounseled arrestee was in no position to make
an intelligent ¢hoice about his options even if they had
been accurately described to him. See Brief for the
United States at 39-40. If the decision is unfair under
Johnson when a defendant who is guided by counsel is
required to make it, the fact that a defendant is
unrepresented and under arrest certainly cannot render it
fair.
Assuming that the defendant in the present case was
compelled to choose between his right to silence and an
undiluted right to testify at trial, the controlling case is
not McGautha but Brooks v. Tennessee, 406 U.S. 605
(1972). The same rights were involved in Brooks. The
Court held that a defendant could not constitutionally
be compelled to choose between his right to remain
silent and his right to testify. 406 U.S. at 610-11.
D.The police have no right to take “discovery”
from an uncounseled accused and the im-
peachment of the defendant in this case
cannot be justified as a sanction imposed for
his failure to provide discovery.
The Court’s decision in Williams v. Florida,-399 US.
78 (1970), cannot be distorted to justify impeachmen
; af
of a defendant’s trial testimony if he remains silent
during custodial: interrogation. The Williams Court held
that a defendant was not constitutionally compelled to
incriminate himself merely because he complied with a
State notice-of-alibi rule out of fear that non-compliance
would mean exclusion of his alibi evidence at trial. See
399 U.S. at 79-80.2! The rule required that on written
demand defendant’s counsel provide the prosecution
with the particulars of the alibi defense, including the
names and addresses of alibi witnesses. The government
was required to reciprocate with ample discovery of its
case. 399 U.S. at 79. This procedure, said the Court,
produced no compulsion within the meaning of the
Fifth Amendment because the choice a defendant was
required to make was perfectly analogous to choices he
was required to make at trial. The act of putting alibi
witnesses on the stand notifies the government of who
these witnesses are and provides investigatory leads.
Only the timing was accelerated. 399 U.S. at 84-85.
In the present case, the government is seeking to
require a defendant to submit himself personally to
custodial interrogation or suffer a sanction for thus
refusing “discovery.” This requirement would be a far
cry from the acceleration of trial processes at issue in
Williams. In addition, the advantage the government
received would be unbalanced by any reciprocal
discovery right due the defendant. In a later case, the
Court unanimously held unconstitutional a_ state
The Court has specifically reserved the question of whether
an otherwise valid discovery order may be enforced by excluding
a defendant’s trial testimony. Wardius v. Oregon, 412 U.S. 470,
472 n.4 (1973). Cf. Williams v. Florida, 399 U.S. 78, 83 n. 14
(1970).
58
discovery procedure that required the defendant to
disclose his case to the government but gave the defense
no reciprocal discovery right. See Wardius v. Oregon,
412 U.S. 470 (1973). The defendant in that case failed
to comply with a state notice-of-alibi statute and was \
precluded from presenting alibi witnesses or from
himself testifying on his alibi. 412 U.S. at 473. Mr.
Justice Marshall, speaking for seven members of the
Court, said that the lack of reciprocity violated the due |
process clause even if valid objectives could be reached
under a balanced discovery scheme:
The State may not insist that trials be run asa
“search for truth” so far as defense witnesses are
concerned, while maintaining “poker game”
secrecy for its own witnesses. It is fundamentally
unfair to require a defendant to divulge the details
of his own case while at the same time subjecting
him to the hazard of surprise concerning refutation
of the very pieces of evidence which he disclosed
to the State.
412 U.S. at 475-76 (footnote omitted). The defense in
the present case had no opportunity to discover the
government’s case against the defendant that would be
analogous to the right the government asserts to
discover anticipated defenses through custodial inter
rogation of the defendant. The “discovery” right the
government asserts would, therefore, deny due process
of law.
The government’s attempt to analogize this case to
McGautha or Williams, as a case involving “‘the
accused’s inherent need to make tactical judgments
about the conduct of his defense,” Brief for the United
States at 32, or the defendant’s need to weigh the
-_
59
“strategic disadvantages at trial’ from his course of
conduct, /d. at 36, ignores the fact that Mr. Hale was
under arrest and without counsel at the time the
government would require him to decide how he would
conduct his defense. The government would require a
defendant to be ‘immersed in the intricacies of
substantive and procedural criminal law,” see Kirby y.
Illinois, 406 U.S. 682, 689 (1972), before the formal
initiation of a criminal prosecution and before appoint-
ment of counsel, though clearly after the time the
police decided to seek prosecution. The failure to
comply with the police demand for discovery would
undercut the defendant’s right to testify, yet the Court
has long recognized that a defendant cannot be required
to make a decision about that right without counsel’s
advice. See Brooks v. Tennessee, 406 U.S. 605, 612
972); Ferguson vy. Georgia, 365 US. 570, 594-96
(1961)?? It would therefore be improper to require a
defendant to make such Strategic choices at the
stationhouse.
\
“Because a defendant’s right to testify at his trial is among
“those rights which the Constitution guarantees to a criminal
defendant in order to preserve a fair trial,” “any alleged waiver
must meet the strict standard of an intentional relinquishment of
a ‘known’ right.” See Schneckloth v. Bustamonte, 412 U.S. 218,
236-237 (1973).
~
60
CONCLUSION
It is therefore respectfully submitted that ° the
decision of the Court of Appeals should be affirmed.
Respectfully submitted,
LARRY J. RITCHIE
Georgetown University Law Ce
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
Attorney for Respondent
March 1975
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