Opinion — United States v. Hale

: Where it is feasible, a syllabus (headnote) wiil be re-

connection with this case, at the time

repared by the Reporter f

on See United Btates v. Detroit Lumber

SUPREME COURT OF THE UNITED STATES

| Syllabus

UNITED STATES v. HALE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-364. Argued April 14, 1975—Decided June 23, 1975

Following respondent's arrest for robbery he was taken to the police

station, where, advised of his right to remain silent, he made no

response to an officer’s inquiry as to the source of money found

on his person. Respondent testified at his trial and, in an effort

i to impeach his alibi, the prosecutor caused respondent to admit

| on cross-examination that he had not offered the exculpatory

information to the police at the*time of his arrest. The trial

court instructed the jury to disregard the colloquy but refused

to declare a mistrial. Respondent was corivicted. The Court of

Appeals reversed, holding that inquiry into respondent’s prior

silence impermissibly prejudiced his defense as well as infringed

upon his constitutional right to remain silent under Miranda v.

, Arizona, 384 U. S. 436. The Government, relying on Raffel v.

United States, 271 U. S. 494, contends that since respondent chose

to testify in-his own behalf, it was permissible to impeach his

credibility by proving that he had chosen to remain silent at the

time of his arrest. Held: Respondent’s silence during police inter-

— rogation lacked significant probative value and under these cir-

\ . cumstances any reference to his silence carried with it an intoler-

®. ably prejudicial impact. This Court, exercising its supervisory

authority over the lower federal courts, therefore concludes that

respondent is entitled to a new trial. Pp. 4-9.

(a) Under the circumstances of this case the failure of respond-

ent, who had just been given the Miranda warnings, to respond

during cu:todial interrogation to inquiry about the money can as

| easily conno‘e reliance dn the right to remain silent as to support

an inference tiat his trial testimony was a later fabrication.

Raffel v. United States, supra, distinguished. Pp. 4-6.

ee

UNITED STATES v. HALE

Syllabus °

(b) Respondent’s prior silence was not so clearly inconsistent

with his trial testimony as to warrant admission into evidence

of that silence as a prior inconsistent “statement,” as is manifested

by the facts that (1) respondent had repeatedly asserted innocence

during the proceedings; (2) he was being questioned in secretive

surroundings with no one but the police also present; and (3) as

the target of eye-witness identification, he was clearly a “potential

defendant.” Grunewald v. United States, 353 U. S. 391, followed.

Pp. 6-8.

(c) Admission of evidence of silence at the time of arrest has

a significant potential for prejudice in that the jury may assign

much more weight to the defendant’s previous silence than is

— U.S. App. D. C. —, 498 F. 2d 1038, affirmed.

Marsnatt, J., delivered the opinion of the Court, in which

BRENNAN, Stewart, PowELL, and Reunauist, JJ., joined. BURGER,

C. J., and Dovetas and Wurrz, JJ., filed opinions concurring in the

judgment. Biackmun, J., concurred in the result.

NOTICE : This opinion is subject to formal revision before publication

in the preliminary ag of the United States Reports. Readers are re-

Ss ae Rn a. manors, * ee zaprome Court of the

nit tates, ington, D.C. , of any typo; hical or other

formal errors, in order that corrections may Le mate’ before the pre-

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 74-364

: 24s On Writ of Certiorari to the

U States, Petitioner, :

rams nine United States Court of Ap-

peals for the District of

Columbia Circuit.

v.

William G. Hale.

[June 23, 1975]

Mr. Justice MarsHALL delivered the opinion of the

Court.

Respondent was tried and convicted of robbery in the

District Court for the District of Columbia.’ During

cross-examination at trial the prosecutor asked respond-

ent why he had not given the police his alibi when he

was questioned shortly after his arrest. The trial court

instructed the jury to disregard the colloquy but refused

to declare a mistrial. The Court of Appeals for the Dis-

trict of Columbia Circuit reversed, holding that inquiry

into respondent’s prior silence impermissibly prejudiced

his defense and infringed upon his right to remain silent

under Miranda v. Arizona, 384 U. S. 436, 468 n. 37

(1936). We granted certiorari, 419 U. S. 1045, because

of a conflict among the courts of appeals over whether

a defendant can be cross-examined about his silence dur-

ing police interrogation,? and because of the importance

of this question to the administration of justice.

* Respondent was tried in federal district court prior to the effec-

tive date for the transfer of jurisdiction over D. C. Code offenses

under the District of Columbia Court Reorganization and Criminal

Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473.

2Compare United States v. Semensohn, 421 F. 2d 1206, 1209

(CA2 1970); United States v. Brinson, 411 F. 2d 1057, 1060 (CA6

2 UNITED STATES v. HALE

We find that the probative value of respondent’s pre-

trial silence in this case was outweighed by the prejudi-

cial impact of admitting it into evidence. Affirming the

judgment on this ground, we have no occasion to reach

the broader constitutional question that supplied an

alternative basis for the decision below.

I

On June 1, 1971, Lonnie Arrington reported to police

that he had been attacked and robbed by a group of five

men. Initially, he claimed that $65 had been stolen,

but he later changed the amount to $96 after consulting

with his wife. As the police were preparing to accom-

pany Arrington through the neighborhood in search of

the attackers, he observed two men and identified one

of them as one of his assailants. When the police gave

chase, the two men fled but one was immediately cap-

tured. The victim identified respondent Hale as one of

the robbers.

Respondent was then arrested, taken to the, police

station and advised of his right to remain silent. He

was searched and found to be in possession of $158: in

cash. An officer then asked, “Where did you get the

money?” Hale made no response.

At trial respondent took the witness stand in his own

defense. He acknowledged having met Arrington in a

shoe store on the day in question. Hale stated that.

after the meeting, he was approached by three men who

inquired whether Arrington had any money, to which

Hale replied he “didn’t know.” From there respondent _

1969); Fowle v. United States, 410 F. 2d 48 (CA9 1969); and

Johnson v. Patterson, 475 F. 2d 1066 (CA10), cert. denied, 414 U. 8.

878 (1973), with United States ex rel. Burt v. New Jersey, 475 F.

2d 234 (CA3), cert. denied, 414 U. 8. 938 (1973); and United

States v. Ramirez, 441 F. 2d 950, 954 (CA5), cert. denied, 414 U. 8.

869 (1971).

_—

UNITED STATES v. HALE : 3

claimed he went to a narcotics treatment center, where

he remained until after the time of the robbery. Ac-

cording to his testimony he left the center with a friend

who subsequently purchased narcotics. Shortly after the

transaction they were approached by the police. Hale

testified that he fled because he feared being found in

the presence of a person carrying narcotics. He also

insisted that his estranged wife had received her welfare

check on that day and had given him approximately $150

to purchase some money orders for her as he had done on

several prior occasions.

In an effort to impeach Hale’s explanation of his pos-

session of the money, the prosecutor caused Hale to

admit on cross-examination that he had not offered the

exculpatory information to the police at the time of

his arrest:

“Q. Did you in any way indicate [to the police]

where the money came from?

“A. No, I didn’t.

“Q. Why.-not?

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

The Government takes the position that since the

respondent chose to testify in his own behalf, it was per-

missible to impeach his credibility. by proving that he

had chosen to remain silent at the time of his arrest.

For this proposition the Government relies heavily on

this Court’s decision in Raffel v. United States, 271 U.S.

494 (1926).‘ There, a second trial was required whén

* Immediately following the exchange, the court cautioned the

jury that the questioning was improper and that they were to dis-

regard it. The Court of Appeals held that the error was not cured

by this instruction and the Government does not contend in this

Court that the error was harmless.

*Since we do not reach the constitutional claim raised today, we

need not decide whether the Raffel decision has survived Johnson v.

: _—

4 UNITED STATES v. HALE

the first jury failed to reach a verdict. In reliance on

_ his privilege against compulsory self-incrimination, the

accused declined to testify at his first trial. At the sec-

ond trial, however, he took the stand in an effort to

refute the testimony of a government witness. Over

objection, Raffel admitted that he had remained silent

in the face of the same testimony at the earlier proceed-

ing. . Under these circumstances the Court concluded

that Raffel’s silence at the first trial was inconsistent

with his testimony at the second, and that his silence

could be-used to impeach the credibility of his later

representations. The Government argues that silence

during police interrogation is similarly probative and

should therefore be admissible for impeachment purposes.

We cannot agree. The assumption of inconsistency

underlying Raffel is absent here. Rather, we find the’

circumstances of this case closely parallel to those in

Grunewald v. United States, 353 U. S. 391 (1957), and

we conclude that the principles of that decision compel

affirmance here.

II

A basie rule of evidence provides that prior incon-

sistent statements may be used to impeach the credibility

of a witness.’ As a preliminary matter, however, the

court must be persuaded that the statements are indeed

inconsistent. 3A J. Wigmore, Evidence § 1040 (Chad-

bourn rev. 1970). If the Government fails to establish

a threshold incdnsistency between silence at the police

station and later exculpatory testimony at trial, proof of

silence lacks any significant probative value and must

therefore be excluded.

In most circumstances silence is so ambiguous that

United States, 318 U.S. 184 (1943), and Griffin v. California, 380

U. S. 609 (1965). See Grunewald, supra, 353 U. S., at 425-426

(Black, J., concurring). ©

_—

we

UNITED STATES v. HALE 5

it is of little probative force. For example, silence is

commonly thought to lack probative value on the ques-

tion of whether a person has expressed tacit agreement

or disagreement with contemporaneous statements of

others. See 4 J. Wigmore, Evidence § 1071 (Chadbourn

rev. 1972). Silence gains more probative weight where

it, persists in the face of accusation, since it is assumed

in such circumstances that the accused would be more

likely than not to dispute an untrue accusation. Failure

to contest an assertion, however, is considered evidence

of acquiescence only if it would have been natural under

the circumstances to object to the assertion in question.

3A J. Wigmore, Evidence § 1042 (Chadbourn rev. 1970).

The Raffel Court found that the circumstances of the

earlier confrontation naturally called for a reply. Ac-

cordingly, the Court held that the prior silence of the

accused was admissible. But the situation of an arrestee

is very different, for he is under no duty to speak and,

as in this case, has ordinarily been advised by govern-

ment authorities only moments earlier that he has a right

to remain silent, and that anything he does say can and

will be used against him in court.

At the time of arrest and during custodial interroga-

tion, innocent and guilty alike—perhaps particularly the

innocent—may find the situation so intimidating that

they may choose to stand mute. A variety of reasons

may influence that decision. In these often emotional

and confusing circumstances, a suspect may not have

heard or fully understood the question, or may have felt

there was no need to reply. See Traynor, The Devils of

Due Process in Criminal Detection, Detention, and Trial,

33°U. Chi. L. Rev. 627, 676 (1966). He may have main-

tained silence out of fear or unwillingness to itcriminate

another. Or the arrestee may simply react with silence

in response to the hostile and perhaps unfamiliar atmos-

6 UNITED STATES v. HALE

phere surrounding his detention. In sum, the inherent

pressures of in-custody interrogation exceed those of

questioning before a grand jury and compound the diffi-

culty of identifying the reason for silence.’

Respondent, for example, had just been given the

Miranda warnings and was particularly aware of his right

to remain silent and the fact that anything he said could

be used against him. Under these circumstances, his

failure to offer an explanation during the custodial inter-

rogation.can as,easily be taken to indicate reliance on the

right to remain silent as to support an inference that the

explanatory testimony was a later fabrication. There is

simply nothing to indicate which interpretation is more

probably correct.

III

Our analysis of the probative value of silence before

police interrogators is similar to that employed in Grune-

wald v. United States, supra. In that case a witness

before a grand jury investigating corruption in the Inter-

nal Revenue Service declined to answer a series of ques-

tions on the ground that the answers might tend to

incriminate him. The witness, Max Halperin, was

later indicted for conspiracy to defraud the United

States. At trial he took the stand to testify in his own

defense, and there responded to the same questions in a

manner consistent with innocence. On cross-examing-

tion the prosecutor elicited, for purposes of impeachment,

testimony concerning the defendant’s earlier invocation

- of the Fifth Amendment on the same subject matter.

The Court framed the issue of Halperin’s prior silence

as an evidentiary problem and concluded that the cir-

cumstances surrounding Halperin’s appearance before the

5 See Kamisar, Kauper’s “Judicial Examination of the Accused”

Forty Years Later—Some comments on a Remarkable Article, 73

Mich. L. Rev. 15, 34 n. 70 (1974).

UNITED STATES v. HALE 7

grand jury justified his reliance on the Fifth Amendment,

imposed no mandate to speak, and presented walid rea-

sons, other than culpability, for deferring comment. The

Court ruled that Halperin’s prior silence was not so

clearly inconsistent with his later testimony as to justify

its admission as a prior inconsistent “statement.”

In Grunewald the Court identified three factors rele-

vant to determining whether silence was inconsistent

with later exculpatory testimony: (1) repeated asser-

tions of innocence before the grand jury; (2) the

secretive nature of the tribunal in which the initial ques-

tioning occurred; 4 and (8) the focus on petitioner as

potential defendant at the time of the arrest, making it

“natural for him to fear that he was being asked ques-

tions for the very purpose of providing evidence against

himself.” 353 U. S., at 422-423.

Applying these factors here, it appears that this case

is an even stronger one for exclusion of the evidence

than Grunewald. First, the record reveals respondent’s

repeated assertions of innocence during the proceedings;

there is nothing in the record of respondent’s testimony

inconsistent with his claim of innocence. Second, the

forum in which the questioning of Hale took place was

secretive and in addition lacked such minimal safeguards

as the presence of public arbiters and a reporter, whjch

were present in Grunewald. Even more than Halperin,

respondent may well have been intimidated by the

setting, or at the very least, he may have preferred to

make any statements in more hospitable surroundings,

*“Innocent men are more likely to [remain silent] in secret

proceedings where they testify without advice of counsel and with-

out opportunity for cross-examination, than in open court proceed-

ings where cross-examination and judicially supervised procedure

provide safeguards for the establishing of the whole, as against the

possibility of merely partial truth.” Grunewald v. United State,

353 U. S., at 422-423.

.

8 UNITED STATES v. HALE

in the presence of an attorney, or in open court. Third,

Hale’s status as a “potential defendant” was even clearer

than Halperin’s since Hale had been the subject of eye-

witness identification and had been arrested on suspicion

of having committed the offense. '

The Government nonetheless contends that respond-

ent’s silence at the time of his arrest is probative of the

falsity of his explanation later proffered at trial because

the incentive of immediate release and the opportunity ,

for independent corroboration would have prompted an

innocent suspect to explain away the incriminating cir-'

cumstances. On the facts of this case, we cannot agree.

Petitioner here had no reason to think that any explana-

tion he might make would hasten his release. On the

contrary, he had substantial indication that nothing he

said would influence the police decision to retain him in

custody. At the time of his arrest petitioner knew that

the case against him was built on seemingly strong evi-

dence—on an identification by the complainant, his flight

at that time, and his possession of $158. In these cir-

cumstances he could not have expected the police to

release him merely on the strength of his explanation.

. Hale’s prior coritacts with the police and his participation

in a narcotics rehabilitation program further diminished

‘the likelihood of his release, irrespective of what he might

say. In light of the many alternative explanations for

his pretrial silence, we do not think it sufficiently proba-

tive of an inconsistency with his in-court testimony to

warrant admission.

IV

Not only is evidence of silence at the time of arrest

generally not very probative of a defendant's credibility,

but it also has a significant potential for prejudice. The

danger is that the jury is likely to assign much more

weight to the defendant’s previous silence than is war-

UNITED STATES v. HALE 9

ranted. And permitting the defendant to explain the

reasons for his’silence is unlikély to overcome the strong

negative inference that the jury is likely to draw from

the fact that the defendant remained silent at the time

of his arrest.’ |

As we have stated before: “Where the risk of con-

fusion is so great as to upset the balance of advantage,

the evidence goes out.” Shepherd y. vies States, 290

U.S. 96, 104 (1930). We now conclude that the

respondent’s silence during police interrogation lacked

significant probative valye and that any reference to his

silence under such circumstances carried with it an in-

tolerably prejudicial impact. .

' Accordingly, we hold that under the circumstances of

this case it was prejudicial error for the trial court to

permit cross-examination of respondent concerning his

silence during police interrogation, and we conclude, in

the exercise of our supervisory authority over the lower

federal courts, that Hale is entitled ‘to a new trial. ‘

The judgment below is

! i Affirmed.

Mr. Justice BLACKMUN concurs in the result.

4

i

” We recognize that the question whether evidence is sufficiently

inconsistent to be sent to the jury on the issue of credibility is

ordinarily in the discretion of the trial court. “But, where such

evidentiary matters have grave constitutional overtones. . we

feel justified in ‘exercising this Court’s supervisory control.” Grune-

wald v. United States, 353 U. S., at 423-424.

SUPREME COURT OF THE UNITED STATES

No. 74-364

United States, Petitioner, On Writ of Certiorari to the

y. United States Court of Ap-

bias peals for the District of

William G. Hale. Columbia Circuit,

[June 23, 1975]

Me. Curery Justice Burazr, concurring in the

judgment.

I cannot escape the conclusion that this case is some-

thing of a tempest-in-a-saucer and the Court rightly

avoids placing the result on constitutional grounds. A

dubious aspect of the Court’s opinion is to renew the

dictum of the Grunewald opinion, see ante, at 7 and n. 6.

There the Court casually elevated a fallacy into a gen-

eral proposition in terms that the innocent “are more

likely to [remain silent] in secret proceedings . . . than

in open court proceedings... .” To begin with, there is

not a scintilla of empirical data to support the first

generalization nor is it something generally accepted as

validated by ordinary human experience. It is no more

accurate than to say, for example, that the innocent are

the first to protest their innocence than that the guilty

do so. There is simply no basis for declaring a general-

ized probability one way or the other. Second, the

Grunewald suggestion that people are more likely to

speak out “in open court proceedings .. .” has no basis

in human experience. A confident, assured person will

likely speak out in either place; a timid, insecure person

may be more overwhelmed by the formality of “open

court proceedings” than by a police station. Moreover,

in “open court” if one is an accused, there is a constitu-

2 UNITED STATES v. HALE

tional option to remain totally silent but if an accused

takes the stand he must answer all admissible questions.

A nonparty witness has less option than the accused since

a nonparty witness must take the stand if called. We

ought to be wary of casual generalizations that read well

but “do not wash.”

SUPREME COURT OF THE UNITED STATES

No. 74-364

United States, Petitioner, On Writ of Certiorari to the

United States Court of Ap-

peals for the District of

Columbia Circuit.

v.

William G. Hale.

[June 23, 1975]

Mr. Justice Dovatas, concurring in the judgment.

I agree with the Court that the judgment below should

be affirmed, but “I do not, like the Court, rest my con-

clusion on the special circumstances of this case. I can

think of no special circumstances that would justify use

of a constitutional privilege to discredit or convict a per-

son who asserts it.” Grunewald v. United States, 353

U. S. 391, 425 (1957) (concurring opinion). My view

of this case is therefore controlled by Miranda v. Arizona,

384 U. S. 436 (1966). I do not accept the idea that

Miranda loses its force in the impeachment context.

See Harris v. New York, 401 U. S. 222 (1971). In my

opinion Miranda should be given full effect.

I also believe, as does my Brother Wuire, that given

the existence of Miranda due process is violated when the

prosecution calls attention to the silence of the accused

at the time of arrest.

ee

SUPREME COURT OF THE UNITED STATES

No. 74-364

United States, Petitioner, On Writ of Certiorari to the

2 United States Court of Ap-

a : peals for the District of

William G. Hale. Columbia Circuit.

[June 23, 1975]

Mr. Justice WHITE, concurring in the judgment.

I am no more enthuisastic about Miranda v. Arizona,

384 U. S. 436 (1966), now than I was when that decision

was announced. But when a person under arrest is in-

formed, as Miranda requires, that he may remain silent,

that anything he says may be used against him and that

he may have an attorney if he wishes, it seems to me that

it does not comport with due process to permit the

prosecution during the trial to call attention to his

silence at, the time of arrest and to insist that because

he did not speak about the facts of the case at that time,

as he was told he need not do, an unfavorable inference

might be drawn as to the truth of histrial testimony. Cf.

Johnson v. United States, 318 U. S. 189, 196-199 (1943).

Surely Hale was not informed here that his silence, as

well as his words, could be used against him at trial.

Indeed, anyone would reasonably conclude from Miranda

warnings that this would not be the case. I would

affirm on this ground.