U.S. Supreme Court Doyle v. Ohio, 426
U.S. 610 (1976) Doyle v. Ohio No. 75-5014 Argued February 23,
1976 Decided June 17, 1976 426
U.S. 610 ast|>* 426
U.S. 610 CERTIORARI TO THE COURT OF APPEALS
OF OHIO, TUSCARAWAS COUNTY Syllabus During the course of their state criminal trials petitioners,
who, after arrest, were given warnings in line with Miranda v.
Arizona, 384 U. S. 436 , 384 U. S.
467 -473, took the stand and gave an exculpatory story
that they had not previously told to the police or the prosecutor.
Over their counsel's objection, they were cross-examined as to why
they had not given the arresting officer the exculpatory
explanations. Petitioners were convicted, and their convictions
were upheld on appeal. Held: The use for impeachment purposes of petitioners'
silence, at the time of arrest and after they received Miranda warnings, violated the Due Process Clause of the
Fourteenth Amendment. Post-arrest silence following such warnings
is insolubly ambiguous; moreover, it would be fundamentally unfair
to allow an arrestee's silence to be used to impeach an explanation
subsequently given at trial after he had been impliedly assured, by
the Miranda warnings, that silence would carry no penalty.
Pp. 426 U. S.
616 -620. Reversed and remanded. POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which BLACKMUN and
REHNQUIST, JJ., joined, post, p. 426 U. S.
620 . Page 426 U. S. 611 MR. JUSTICE POWELL delivered the opinion of the Court.

															The question in these consolidated cases is whether a state
prosecutor may seek to impeach a defendant's exculpatory story,
told for the first time at trial, by cross-examining the defendant
about his failure to have told the story after receiving Miranda warnings [ Footnote
1 ] at the time of his arrest. We conclude that use of the
defendant's post-arrest silence in this manner violates due
process, and therefore reverse the convictions of both
petitioners. I Petitioners Doyle and Wood were arrested together and charged
with selling 10 pounds of marihuana to a local narcotics bureau
informant. They were convicted in the Common Pleas Court of
Tuscarawas County, Ohio, in separate trials held about one week
apart. The evidence at their trials was identical in all material
respects.

															The State's witnesses sketched a picture of a routine marihuana
transaction. William Bonnell, a well known "street person" with a
long criminal record, offered to assist the local narcotics
investigation unit in setting up drug "pushers" in return for
support in his efforts to receive lenient treatment in his latest
legal problems. The narcotics agents agreed. A short time later,
Bonnell advised the unit that he had arranged a "buy" of 10 pounds
of marihuana and needed $1,750 to pay for it. Since the banks were
closed and time was short, the agents were able to collect only
$1,320. Bonnell took this money and left for the rendezvous, under
surveillance by four narcotics agents in two cars. As planned, he
met petitioners in a bar in Dover, Ohio. From there, he and
petitioner Wood drove in Bonnell's Page 426 U. S. 612 pickup truck to the nearby town of New Philadelphia, Ohio, while
petitioner Doyle drove off to obtain the marihuana and then meet
them at a prearranged location in New Philadelphia. The narcotics
agents followed the Bonnell truck. When Doyle arrived at Bonnell's
waiting truck in New Philadelphia, the two vehicles proceeded to a
parking lot, where the transaction took place. Bonnell left in his
truck, and Doyle and Wood departed in Doyle's car. They quickly
discovered that they had been paid $430 less than the agreed-upon
price, and began circling the neighborhood looking for Bonnell.
They were stopped within minutes by New Philadelphia police acting
on radioed instructions from the narcotics agents. One of those
agents, Kenneth Beamer, arrived on the scene promptly, arrested
petitioners, and gave them Miranda warnings. A search of
the car, authorized by warrant, uncovered the $1,320. At both
trials, defense counsel's cross-examination of the participating
narcotics agents was aimed primarily at establishing that, due to a
limited view of the parking lot, none of them had seen the actual
transaction but had seen only Bonnell standing next to Doyle's car
with a package under his arm, presumably after the transaction.
[ Footnote 2 ] Each petitioner
took the stand at his trial and admitted practically everything
about the State's case except the most crucial point: who was Page 426 U. S. 613 selling marihuana to whom. According to petitioners, Bonnell had
framed them. The arrangement had been for Bonnell to sell Doyle 10
pounds of marihuana. Doyle had left the Dover bar for the purpose
of borrowing the necessary money, but, while driving by himself,
had decided that he only wanted one or two pounds, instead of the
agreed-upon 10 pounds. When Bonnell reached Doyle's car in the New
Philadelphia parking lot, with the marihuana under his arm, Doyle
tried to explain his change of mind. Bonnell grew angry, threw the
$1,320 into Doyle's car, and took all 10 pounds of the marihuana
back to his truck. The ensuing chase was the effort of Wood and
Doyle to catch Bonnell to find out what the $1,320 was all
about.

															Petitioners' explanation of the events presented some difficulty
for the prosecution, as it was not entirely implausible and there
was little if any direct evidence to contradict it. [ Footnote 3 ] As part of a wide-ranging
cross-examination for impeachment purposes, and in an effort to
undercut the explanation, the prosecutor asked each petitioner at
his respective trial why he had not told the frame-up story to
Agent Beamer when he arrested petitioners. In the first trial, that
of petitioner Wood, the following colloquy occurred: [ Footnote 4 ]

															"Q. [By the prosecutor.] Mr. Beamer did arrive on the
scene?"

															"A. [By Wood.] Yes, he did."

															"Q. And I assume you told him all about what happened to
you?"

															" * * * *" "A. No. " Page 426 U. S. 614 "Q. You didn't tell Mr. Beamer?"

															" * * * *" "A. No."

															"Q. You didn't tell Mr. Beamer this guy put $1,300 in your
car?"

															"A. No, sir."

															"Q. And we can't understand any reason why anyone would put
money in your car and you were chasing him around town and trying
to give it back?"

															"A. I didn't understand that."

															"Q. You mean you didn't tell him that?"

															"A. Tell him what?"

															"Q. Mr. Wood, if that is all you had to do with this and you are
innocent, when Mr. Beamer arrived on the scene, why didn't you tell
him?"

															" * * * *" "Q But, in any event, you didn't bother to tell Mr. Beamer
anything about this?"

															"A. No, sir."

															Defense counsel's timely objections to the above questions of
the prosecutor were overruled. The cross-examination of petitioner
Doyle at his trial contained a similar exchange, and again defense
counsel's timely objections were overruled. [ Footnote 5 ] Page 426 U. S. 615 Each petitioner appealed to the Court of Appeals, Fifth
District, Tuscarawas County, alleging, inter alia, that
the trial court erred in allowing the prosecutor to cross-examine
the petitioner at his trial about his post-arrest silence. The
Court of Appeals affirmed the convictions, stating as to the
contentions about the post-arrest silence:

															"This was not evidence offered by the state in its case in chief
as confession by silence or as substantive evidence of guilt, but
rather cross examination Page 426 U. S. 616 of a witness as to why he had not told the same story earlier at
his first opportunity."

															"We find no error in this. It goes to credibility of the
witness."

															The Supreme Court of Ohio denied further review. We granted
certiorari to decide whether impeachment use of a defendant's
post-arrest silence violates any provision of the Constitution,
[ Footnote 6 ] a question left
open last Term in United States v. Hale, 422 U.
S. 171 (1975), and on which the Federal Courts of
Appeals are in conflict. See id. at 422 U. S. 173 n. 2. II The State pleads necessity as justification for the prosecutor's
action in these cases. It argues that the discrepancy between an
exculpatory story at trial and silence at time of arrest gives rise
to an inference that the story was fabricated somewhere along the
way, perhaps to fit within the seams of the State's case as it was
developed at pretrial hearings. Noting that the prosecution usually
has little else with which to counter such an exculpatory story,
the State seeks only the right to cross-examine a defendant as to
post-arrest silence for the limited purpose of impeachment. In
support of its position, the State emphasizes the importance of
cross-examination Page 426 U. S. 617 in general, see Brown v. United States, 356 U.
S. 148 , 356 U. S.
154 -155 (1958), and relies upon those cases in which
this Court has permitted use for impeachment purposes of
post-arrest statements that were inadmissible as evidence of guilt
because of an officer's failure to follow Miranda's dictates. Harris v. New York, 401 U.
S. 222 (1971); Oregon v. Hass, 420 U.
S. 714 (1975); see also Walder v. United
States, 347 U. S. 62 (1954). Thus, although the State does not suggest petitioners'
silence could be used as evidence of guilt, it contends that the
need to present to the jury all information relevant to the truth
of petitioners' exculpatory story fully justifies the
cross-examination that is at issue.

															Despite the importance of cross-examination, [ Footnote 7 ] we have concluded that the Miranda decision compels rejection of the State's
position. The warnings mandated by that case, as a prophylactic
means of safeguarding Fifth Amendment rights, see Michigan v.
Tucker, 417 U. S. 433 , 417 U. S.
443 -444 (1974), require that a person taken into custody
be advised immediately that he has the right to remain silent, that
anything he says may be used against him, and that he has a right
to retained or appointed counsel before submitting to
interrogation. Silence in the wake of these warnings may be nothing
more than the arrestee's exercise of these Miranda rights.
Thus, every post-arrest silence is insolubly ambiguous because of
what the State is required to advise the person arrested. [ Footnote 8 ] See United States v.
Hale, supra, Page 426 U. S. 618 at 422 U. S. 177 .
Moreover, while it is true that the Miranda warnings
contain no express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives the warnings.
In such circumstances, it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence
to be used to impeach an explanation subsequently offered at trial.
[ Footnote 9 ] Page 426 U. S. 619 MR. JUSTICE WHITE, concurring in the judgment in United
States v. Hale, supra at 422 U. S.
182 -183, put it very well:

															"[W] hen a person under arrest is informed, 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
his trial testimony. . . . 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.
[ Footnote 10 ]"

															We hold that the use for impeachment purposes of petitioners'
silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth
Amendment. [ Footnote 11 ] The
State has not Page 426 U. S. 620 claimed that such use in the circumstances of this case might
have been harmless error. Accordingly, petitioners' convictions are
reversed and their causes remanded to the state courts for further
proceedings not inconsistent with this opinion. So ordered. * Together with No. 75-5015, Wood v. Ohio, also on
certiorari to the same court.

															[ Footnote 1 ] Miranda v. Arizona, 384 U. S. 436 , 384 U. S.
467 -473 (1966).

															[ Footnote 2 ]

															Defense counsel's efforts were not totally successful. One of
the four narcotics agents testified at both trials that he had seen
the package passed through the window of Doyle's car to Bonnell. In
an effort to impeach that testimony, defense counsel played a tape
of the preliminary hearing at which the same agent had testified
only to seeing the package under Bonnell's arm. The agent did not
retract his trial testimony, and both he and the prosecutor
explained the apparent inconsistency by noting that the examination
at the preliminary hearing had not focused upon whether anyone had
seen the package pass to Bonnell.

															[ Footnote 3 ] See n 2; supra. [ Footnote 4 ]

															Trial transcript in Ohio v. Wood, No. 10657, Common
Pleas Court, Tuscaravas County, Ohio (hereafter Wood Tr.),
465-470.

															[ Footnote 5 ]

															Trial transcript in Ohio v. Doyle, No. 10656, Common
Pleas Court, Tuscarawas County, Ohio (hereafter Doyle Tr.),
504-507.

															"Q. [By the prosecutor.] . . . You are innocent?"

															"A. [By Doyle.] I am innocent. Yes Sir."

															"Q. That's why you told the police department and Kenneth Beamer
when they arrived -- "

															" * * * *" "(Continuing.) -- about your innocence?"

															" * * * *" "A. . . . I didn't tell them about my innocence. No."

															"Q. You said nothing at all about how you had been set up?"

															" * * * *" "Q. Did Mr. Wood?"

															"A. Not that I recall, Sir."

															" * * * *" "Q. As a matter of fact, if I recall your testimony correctly,
you said, instead of protesting your innocence, as you do today,
you said, in response to a question of Mr. Beamer, -- 'I don't know
what you are talking about.'"

															"A. I believe what I said, -- 'What's this all about?' If I
remember, that's the only thing I said."

															" * * * *" "A. I was questioning, you know, what it was about. That's what
I didn't know. I knew that I was trying to buy, which was wrong,
but I didn't know what was going on. I didn't know that Bill
Bonnell was trying to frame me, or what-have-you."

															" * * * *" "Q. All right, -- But you didn't protest your innocence at that
time?"

															" * * * *" "A. Not until I knew what was going on."

															In addition, the court in both trials permitted the prosecutor,
over more objections, to argue petitioners' post-arrest silence to
the jury. Closing Argument of Prosecutor 13-14, supplementing Wood
Tr.; Doyle Tr. 515, 526.

															[ Footnote 6 ]

															Petitioners also claim constitutional error because each of them
was cross-examined by the prosecutor as to why he had not told the
exculpatory story at the preliminary hearing or any other time
prior to the trials. In addition, error of constitutional dimension
is asserted because each petitioner was cross-examined as to
post-arrest, preliminary hearing, and general pretrial silence when
he testified as a defense witness at the other petitioner's trial.
These averments of error present different considerations from
those implicated by cross-examining petitioners as defendants as to
their silence after receiving Miranda warnings at the time
of arrest. In view of our disposition of this case, we find it
unnecessary to reach these additional issues.

															[ Footnote 7 ]

															We recognize, of course, that, unless prosecutors are allowed
wide leeway in the scope of impeachment cross-examination, some
defendants would be able to frustrate the truth-seeking function of
a trial by presenting tailored defenses insulated from effective
challenge. See generally Fitzpatrick v. United States, 178 U. S. 304 , 178 U. S. 315 (1900).

															[ Footnote 8 ]

															The dissent by MR. JUSTICE STEVENS expresses the view that the
giving of Miranda warnings does not lessen the "probative
value of [a defendant's] silence. . . ." Post at 426 U. S. 621 .
But in United States v. Hale, 422 U.
S. 171 , 422 U. S. 177 (1975), we noted that silence at the time of arrest may be
inherently ambiguous even apart from the effect of Miranda warnings, for, in a given case, there may be several explanations
for the silence that are consistent with the existence of an
exculpatory explanation. In Hale, we exercised our
supervisory powers over federal courts. The instant cases, unlike Hale, come to us from a state court, and thus provide no
occasion for the exercise of our supervisory powers. Nor is it
necessary, in view of our holding above, to express an opinion on
the probative value for impeachment purposes of petitioners'
silence. We note only that the Hale court considered
silence at the time of arrest likely to be ambiguous, and thus of
dubious probative value.

															[ Footnote 9 ]

															A somewhat analogous situation was presented in Johnson v.
United States, 318 U. S. 189 (1943). A defendant who testified at his trial was permitted by the
trial judge to invoke the Fifth Amendment privilege against
self-incrimination in response to certain questions on
cross-examination. This Court assumed that it would not have been
error for the trial court to have denied the privilege in the
circumstances, see id. at 318 U. S. 196 ,
in which case a failure to answer would have been a proper basis
for adverse inferences and a proper subject for prosecutorial
comment. But because the privilege had been granted, even if
erroneously, "the requirements of fair trial" made it error for the
trial court to permit comment upon the defendant's silence. Ibid. "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 from his apparent one. . . .
Elementary fairness requires that an accused should not be misled
on that score." Id. at 318 U. S. 197 . Johnson was decided under this Court's supervisory powers
over the federal courts. But the necessity for elementary fairness
is not unique to the federal criminal system. Cf. Raley v.
Ohio, 360 U. S. 423 , 360 U. S.
437 -440 (1959).

															[ Footnote 10 ]

															The dissenting opinion relies on the fact that petitioners in
this case, when cross-examined about their silence, did not offer
reliance on Miranda warnings as a justification. But the
error we perceive lies in the cross-examination on this question,
thereby implying an inconsistency that the jury might construe as
evidence of guilt. After an arrested person is formally advised by
an officer of the law that he has a right to remain silent, the
unfairness occurs when the prosecution, in the presence of the
jury, is allowed to undertake impeachment on the basis of what may
be the exercise of that right.

															[ Footnote 11 ]

															It goes almost without saying that the fact of post-arrest
silence could be used by the prosecution to contradict a defendant
who testifies to an exculpatory version of events and claims to
have told the police the same version upon arrest. In that
situation, the fact of earlier silence would not be used to impeach
the exculpatory story, but rather to challenge the defendant's
testimony as to his behavior following arrest. Cf. United
States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975).

															MR. JUSTICE STEVENS, with whom MR. JUSTICE BLACKMUN and MR.
JUSTICE REHNQUIST join, dissenting.

															Petitioners assert that the prosecutor's cross-examination about
their failure to mention the purported "frame" until they testified
at trial violated their constitutional right to due process and
also their constitutional privilege against self-incrimination. I
am not persuaded by the first argument; though there is merit in a
portion of the second, I do not believe it warrants reversal of
these state convictions. I The Court's due process rationale has some of the
characteristics of an estoppel theory. If (a) the defendant is
advised that he may remain silent, and (b) he does remain silent,
then we (c) presume that his decision was made in reliance on the
advice, and (d) conclude that it is unfair in certain cases, though
not others, [ Footnote 2/1 ] to use
his silence to impeach his trial testimony. The key to the Court's
analysis is apparently a concern that the Miranda warning,
which is intended to increase the probability Page 426 U. S. 621 that a person's response to police questioning will be
intelligent and voluntary, will actually be deceptive unless we
require the State to honor an unstated promise not to use the
accused's silence against him.

															In my judgment, there is nothing deceptive or prejudicial to the
defendant in the Miranda warning. [ Footnote 2/2 ] Nor do I believe that the fact that such
advice was given to the defendant lessens the probative value of
his silence, or makes the prosecutor's cross-examination about his
silence any more unfair than if he had received no such
warning.

															This is a case in which the defendants' silence at the time of
their arrest was graphically inconsistent with their trial
testimony that they were the unwitting victim of a "frame-up" in
which the police did not participate. If defendants had been
framed, their failure to mention that fact at the time of their
arrest is almost Page 426 U. S. 622 inexplicable; for that reason, under accepted rules of evidence,
their silence is tantamount to a prior inconsistent statement, and
admissible for purposes of impeachment. [ Footnote 2/3 ]

															Indeed, there is irony in the fact that the Miranda warning provides the only plausible explanation for their silence.
If it were the true explanation, I should think that they would
have responded to the questions on cross-examination about why they
had remained silent by stating that they relied on their
understanding of the advice given by the arresting officers.
Instead, however, they gave quite a different jumble of responses.
[ Footnote 2/4 ] Those Page 426 U. S. 623 responses negate the Court's presumption that their silence was
induced by reliance on deceptive advice.

															Since the record requires us to put to one side the Page 426 U. S. 624 Court' presumption that the defendants' silence was the product
of reliance on the Miranda warning, the Court's entire due
process rationale collapses. For without reliance Page 426 U. S. 625 on the waiver, the case is no different than if no warning had
been given, and nothing in the Court's opinion suggests that there
would be any unfairness in Page 426 U. S. 626 using petitioners' prior inconsistent silence for impeachment
purposes in such a case.

															Indeed, as a general proposition, if we assume the defendant's
silence would be admissible for impeachment purposes if no Miranda warning had been given, I should think that the
warning would have a tendency to salvage the defendant's
credibility as a witness. If the defendant is a truthful witness,
and if his silence is the consequence of his understanding of the Miranda warning, he may explain that fact when he is on
the stand. Even if he is untruthful, the availability of that
explanation puts him in a better position than if he had received
no warning. In my judgment, the risk that a truthful defendant will
be deceived by the Miranda warning and also will be unable
to explain his honest misunderstanding is so much less than the
risk that exclusion of the evidence will merely provide a shield
for perjury that I cannot accept the Court's due process
rationale.

															Accordingly, if we assume that the use of a defendant's silence
for impeachment purposes would be otherwise unobjectionable, I find
no merit in the notion that he is denied due process of law because
he received a Miranda warning. II Petitioners argue that the State violated their Fifth Amendment
privilege against self-incrimination by asking the jury to draw an
inference of guilt from their constitutionally protected silence.
They challenge both the prosecutor's cross-examination and his
closing argument. A Petitioners claim that the cross-examination was improper
because it referred to their silence at the time of Page 426 U. S. 627 their arrest, to their failure to testify at the preliminary
hearing, and to their failure to reveal the "frame" prior to trial.
Their claim applies to the testimony of each defendant at his own
trial, and also to the testimony each gave as a witness at the
trial of the other. Since I think it quite clear that a defendant
may not object to the violation of another person's privilege,
[ Footnote 2/5 ] I shall only discuss
the argument that a defendant may not be cross-examined about his
own prior inconsistent silence.

															In support of their objections to the cross-examination about
their silence at the time of arrest, petitioners primarily rely on
the statement in Miranda v. Arizona, 384 U.
S. 436 , that the prosecution may not use at trial the
fact that the defendant stood mute or claimed the privilege in the
face of accusations during custodial interrogation. [ Footnote 2/6 ] There are two reasons why
that statement does not adequately support petitioners'
argument.

															First, it is not accurate to say that the petitioners "stood
mute or claimed the privilege in the face of accusations." Neither
petitioner claimed the privilege, and Page 426 U. S. 628 petitioner Doyle did not even remain silent. [ Footnote 2/7 ] The case is not one in which a
description of the actual conversation between the defendants and
the Police would give rise to any inference of guilt if it were not
so flagrantly inconsistent with their trial testimony. Rather than
a claim of privilege, we simply have a failure to advise the police
of a "frame" at a time when it most surely would have been
mentioned if petitioners' trial testimony were true. That failure
gave rise to an inference of guilt only because it belied their
trial testimony.

															Second, the dictum in the footnote in Miranda relies
primarily upon Griffin v. California, 380 U.
S. 609 , which held that the Fifth Amendment, as
incorporated in the Fourteenth, prohibited the prosecution's use of
the defendant's silence in its case in chief. But as long ago as Raffel v. United States, 271 U. S. 494 ,
this Court recognized the distinction between the prosecution's
affirmative use of the defendant's prior silence and the use of
prior silence for impeachment purposes. Raffel expressly
held that the defendant's silence at a prior trial was admissible
for purposes of impeachment despite the application in federal
prosecutions of the prohibition that Griffin found in the
Fifth Amendment. Raffel, supra at 271 U. S.
496 -497.

															Moreover, Mr. Chief Justice Warren, the author of the Court's
opinion in Miranda, joined the opinion in Walder v.
United States, 347 U. S. 62 , which
squarely held that a valid constitutional objection to the
admissibility of evidence as part of the Government's case in chief
did not bar the use of that evidence to impeach the defendant's
trial testimony. The availability of an objection to the
affirmative use of improper evidence does not provide the defendant
"with a shield against contradiction of his untruths." Id. at 347 U. S. 65 .
The need to ensure the integrity Page 426 U. S. 629 of the truth-determining function of the adversary trial process
has provided the predicate for an unbroken line of decisions so
holding. [ Footnote 2/8 ] Page 426 U. S. 630 Although I have no doubt concerning the propriety of the
cross-examination about petitioners' failure to mention the
purported "frame" at the time of their arrest, a more difficult
question is presented by their objection to the questioning about
their failure to testify at the preliminary hearing and their
failure generally to mention the "frame" before trial. [ Footnote 2/9 ] Unlike the failure Page 426 U. S. 631 to make the kind of spontaneous comment that discovery of a
"frame" would be expected to prompt, there is no significant
inconsistency between petitioners' trial testimony Page 426 U. S. 632 and their adherence to counsel's advice not to take the stand at
the preliminary hearing; moreover, the decision not to divulge
their defense prior to trial is probably attributable to counsel
rather than to petitioners. [ Footnote
2/10 ] Nevertheless, unless and until this Court overrules Raffel v. United States, 271 U. S. 494 ,
[ Footnote 2/11 ] I think a state
court is Page 426 U. S. 633 free to regard the defendant's decision to take the stand as a
waiver of his objection to the use of his failure to testify at an
earlier proceeding or his failure to offer his version of the
events prior to trial. B In my judgment, portions of the prosecutor's argument to the
jury overstepped permissible bounds. In each trial, he commented
upon the defendant's silence not only as inconsistent with his
testimony that he had been "framed," Page 426 U. S. 634 but also as inconsistent with the defendant's innocence.
[ Footnote 2/12 ] Comment on the
lack of credibility of the defendant is plainly proper; it is not
proper, however, for the prosecutor Page 426 U. S. 635 to ask the jury to draw a direct inference of guilt from silence
-- to argue, in effect, that silence is inconsistent with
innocence. But since the two inferences -- perjury Page 426 U. S. 636 and guilt -- are inextricably intertwined, because they have a
common source, it would be unrealistic to permit comment on the
former but to find reversible error in the slightest reference to
the latter. In the context of the entire argument and the entire
trial, I am not persuaded that the rather sophisticated distinction
between permissible comment on credibility and impermissible
comment on an inference of guilt justifies a reversal of these
state convictions. [ Footnote
2/13 ]

															Accordingly, although I have some doubt concerning the propriety
of the cross-examination about the preliminary hearing and consider
a portion of the closing argument improper, I would affirm these
convictions.

															[ Footnote 2/1 ]

															As the Court acknowledges, the

															"fact of post-arrest silence could be used by the prosecution to
contradict a defendant who testifies to an exculpatory version of
events and claims to have told the police the same version upon
arrest." Ante at 426 U. S. 619 and this page, n. 11.

															[ Footnote 2/2 ]

															At Wood's trial, the arresting officer described the warning he
gave petitioners:

															"I told Mr. Wood and Mr. Doyle of the Miranda warning
rights -- they had the right to remain silent, anything they said
could and would be used against them in a court of law, and they
had the right to an attorney and didn't have to say anything
without an attorney being present, and, if they couldn't afford
one, the court would appoint them one at the proper time."

															Trial transcript in Ohio v. Wood, No. 10657, Common
Pleas Court, Tuscarawas County, Ohio (hereafter Wood Tr.), 126. At
the Doyle trial, he, testified that he "gave them their rights" and
gave them a " Miranda Warning.'" Trial transcript in Ohio v. Doyle, No. 10656, Common Pleas Court, Tuscarawas
County, Ohio (hereafter Doyle Tr.), 269. Miranda v.
Arizona, 384 U. S. 436 ,
requires the following warning: "[The suspect] must be warned prior to any questioning that he
has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that, if he cannot afford an attorney,
one will be appointed for him prior to any questioning, if he so
desires." Id. at 384 U. S.
479 .

															[ Footnote 2/3 ]

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

															[ Footnote 2/4 ]

															Petitioner Doyle gave the following testimony on direct and
cross-examination at his trial:

															"Q. [By defense counsel.] And you were placed under arrest at
that time?"

															"A. [By Doyle.] Yes. I asked what for, and he said, -- 'For the
sale of marijuana.' I told him, -- I didn't know what he was
talking about."

															"Q. [By the prosecutor.] As a matter of fact, if I recall your
testimony correctly, you said, instead of protesting your
innocence, as you do today, you said in response to a question of
Mr. Beamer, -- 'I don't know what you are talking about.'"

															"A. [By Doyle.] I believe what I said, -- 'What's this all
about?' If I remember, that's the only thing I said."

															"Q. You testified on direct."

															"A. If I did, then I didn't understand."

															". . . I was questioning, you know, what it was about. That's
what I didn't know. I knew that I was trying to buy, which was
wrong, but I didn't know what was going on. I didn't know that Bill
Bonnell was trying to frame me, or what-have-you."

															" * * * *" "Q. All right -- But you didn't protest your innocence at that
time?"

															" * * * *" "A. Not until I knew what was going on."

															Doyle Tr. 479, 506-507.

															At Wood's trial, Doyle gave a somewhat different explanation of
his silence at the time of arrest:

															"Q. [By the prosecutor.] Why didn't [Wood] tell [the police
officers] about Mr. Bonnell?"

															"A. [By Doyle.] Because we didn't know what was going on, and
wanted to find out."

															"Q. So he hid the money under the mat?"

															"A. The police officers said they stopped us for a red light. I
wanted to get my hands on Bill Bonnell."

															"Q. It wasn't because you were guilty, was it?"

															"A. Because I wanted to get my hands on Bill Bonnell because I
suspected he was trying . . ."

															"Q. Why didn't you tell the police that Bill Bonnell just set
you up?"

															"A. Because I would rather have my own hands on him."

															" * * * *" "Q. When Mr. Beamer arrived?"

															"A. . . . [W]hen Mr. Beamer got there, I said to Mr. Beamer,
what the hell is all this about, and he said, you are under arrest
for the suspicion of selling marijuana, and I said, you got to be
crazy. I was pretty upset."

															" * * * *" "So, on the night of April 29, you felt that you were being
framed like you are being framed today?"

															"A. I was so confused that night, the night of the arrest."

															"Q. How about Mr. Wood?"

															"A. Mr. Wood didn't know what was going on."

															" * * * *" "Q. . . . Are you as mad and upset today as you were that
night?"

															"A. I can't answer that question."

															"Q. Did you feel the same way about what happened to you?"

															"A. That night, I felt like I couldn't believe what was
happening."

															"Q. You didn't like being framed?"

															"A. That is right. I didn't like someone putting me in a spot
like that."

															"Q. Didn't it occur to you to try to protect yourself?"

															"A. Yes, at this time, I felt like I wasn't talking to nobody
but John James, who was the attorney at that time."

															"Q. But you felt . . ."

															"A. The man walked up and didn't ask me anything."

															"Q. You didn't talk to a soul about how rotten it was because
you were framed?"

															" * * * *" "A. I will answer the question, sir, the best I can. I didn't
know what to say. I was stunned about what was going on, and I was
asked questions, and I answered the questions as simply as I could,
because I didn't have nobody there to help me answer the
questions."

															"Q. Wouldn't that have been a marvelous time to protest your
innocence?"

															" * * * *" "A. I don't know if it would or not."

															"Q. Do you remember having a conversation with Kenneth
Beamer?"

															"A. Yes, sir."

															"Q. What was said?"

															" * * * *" "A. Kenneth Beamer said I want to know where you stash -- where
your hide out is, where you are keeping the dope, and I said I
don't know what you are talking about. I believe the question was
asked in front of you."

															"Q. Where did this conversation take place?"

															"A. Took place during the search."

															" * * * *" "Q. So, anyway, you didn't tell anyone how angry you were that
night?"

															" * * * *" "A. I was very angry."

															"Q. But you didn't tell anyone?"

															"A. That is right. If I started, I don't know where I would have
stopped. I was upset."

															Wood Tr. 424-430.

															Petitioner Wood testified on cross-examination at his trial as
follows:

															"Q. [By the prosecutor.] Jefferson Doyle said he was confused,
angry and upset [at the time of the arrest]. Were you confused,
angry and upset?"

															" * * * *" "A. [By Wood.] Upset and confused."

															"Q. Why were you upset?"

															"A. Because I didn't know what was going on most of the
time."

															"Q. Why would you be upset? Because you found $1300 in your back
seat?"

															"A. Mainly because the person that was in the car, Jeff [Doyle],
was upset confused and angry and . . ."

															"Q. What has that to do with you?"

															"A. I am in the car. That is what it has to do with me."

															" * * * *" "Q. You are innocent?"

															"A. Yes."

															"Q. Of anything?"

															"A. I don't know about anything."

															"Q. This particular incident, you were placed under arrest,
weren't you?"

															"A. Yes, innocent of this incident."

															"Q. Innocent of the entire transaction?"

															"A. Yes, sir."

															"Q. Or even any knowledge of the entire transaction?"

															"A. Up to a point, sir."

															" * * * *" "Q. Mr. Wood, if that is all you had to do with this and you are
innocent, when Mr. Beamer arrived on the scene, why didn't you tell
him?"

															" * * * *" "A. Mr. Cunningham, in the last eight months to a year, there
has been so many implications, etc. in the paper and law
enforcement that are setting people up and busting them for
narcotics and stuff."

															Wood Tr. 467-469.

															[ Footnote 2/5 ] See Massiah v. United States, 377 U.
S. 201 , 377 U. S.
206 -207; 8 J. Wigmore, Evidence § 2270, pp. 416-417
(McNaughton rev. 1961); cf. Alderman v. United States, 394 U. S. 165 , 394 U. S. 174 .
Cross-examination and comment upon a witness' prior silence does
not raise any inference prejudicial to the defendant, and indeed
does not even raise any inference that the defendant remained
silent.

															[ Footnote 2/6 ]

															"In accord with our decision today, it is impermissible to
penalize an individual for exercising his Fifth Amendment privilege
when he is under police custodial interrogation. The prosecution
may not, therefore, use at trial the fact that he stood mute or
claimed his privilege in the face of accusation. Cf. Griffin v.
California, 380 U. S. 609 (1965); Malloy
v. Hogan, 378 U. S. 1 , 378 U. S.
8 (1964); Comment, 31 U.Chi.L.Rev. 556 (1964);
Developments in the Law -- Confessions, 79 Harv.L.Rev. 935,
1041-1044 (1966). See also Bram v. United States, 168 U. S.
532 , 168 U. S. 562 (1897)."

															384 U.S. at 384 U. S. 468 n. 37.

															[ Footnote 2/7 ] See 426
U.S. 610 fn2/4|>n. 4, supra. [ Footnote 2/8 ]

															As the Court recently recognized in a most carefully considered
opinion, an adversary system can maintain neither the reality nor
the appearance of efficacy without the assurance that its judgments
rest upon a complete illumination of a case, rather than upon "a
partial or speculative presentation of the facts." United
States v. Nixon, 418 U. S. 683 , 418 U. S. 709 .
The necessity of insuring a complete presentation of all relevant
evidence has led to the rule that a criminal defendant who
voluntarily forgoes his privilege not to testify, and presents
exculpatory or mitigating evidence, thereby subjects himself to
relevant cross-examination without the right to reclaim Fifth
Amendment protection on a selective basis. Fitzpatrick v.
United States, 178 U. S. 304 , 178 U. S.
315 .

															"If he takes the stand and testifies in his own defense, his
credibility may be impeached and his testimony assailed like that
of any other witness, and the breadth of his waiver is determined
by the scope of relevant cross-examination. '[H]e has no right to
set forth to the jury all the facts which tend in his favor without
laying himself open to a cross-examination upon those facts.'" Brown v. United States, 356 U.
S. 148 , 356 U. S.
154 -155 (citation omitted).

															One need not impute perjury to an entire class to acknowledge
that a testifying defendant has more to gain and less to lose than
an ordinary witness from fabrications upon the witness stand. Cf. Reagan v. United States, 157 U.
S. 301 , 157 U. S.
304 -311; Taylor v. United States, 390 F.2d 278,
284-285 (CA8 1968) (Blackmun, J.). As the Court notes today:

															"Unless prosecutors are allowed wide leeway in the scope of
impeachment cross-examination some defendants would be able to
frustrate the truth-seeking function of a trial by presenting
tailored defenses insulated from effective challenge." Ante at 426 U. S. 617 n. 7. In recognition of this fact, this Court has allowed evidence
to be used for impeachment purposes that would be inadmissible as
evidence of guilt. In Walder v. United States, 347 U. S. 62 ,
evidence of narcotics unlawfully seized in connection with an
aborted earlier case against a defendant was held admissible for
the limited purpose of impeaching the defendant's testimony that he
never had been associated with narcotics, although such evidence
clearly was inadmissible for any purpose in the prosecution's case
in chief. In Harris v. New York, 401 U.
S. 222 , the Court held admissible for the purpose of
impeaching a defendant's testimony certain partially inconsistent
post-arrest statements which, although voluntary, were unavailable
for the prosecution's case because they had been given by the
defendant without benefit of Miranda warnings. And last
Term, in a decision closely analogous to Harris, the Court
held admissible for impeachment purposes post-arrest statements of
a defendant made after he had received Miranda warnings
and exercised his right to request a lawyer, but before he had been
furnished with counsel as Miranda requires in such
circumstances. Oregon v. Hass, 420 U.
S. 714 .

															In each of these cases involving impeachment cross-examination,
the need to insure the integrity of the trial by the "traditional
truth-testing devices of the adversary process," Harris v. New
York, supra at 401 U. S. 225 ,
was deemed to outweigh the policies underlying the relevant
exclusionary rules.

															[ Footnote 2/9 ]

															Petitioner Doyle was cross-examined as follows at his trial:

															"Q. [By the prosecutor.] All right. Do you remember the
Preliminary Hearing in this case?"

															"A. [By Doyle.] Yes Sir. I remember it."

															"Q. And that was prior to your indictment for this offense, was
it not?"

															"A. Yes sir. I believe, -- Yes Sir, it was before I was
indicted."

															"Q. Arraignment. Is that what you mean?"

															"A. Yes. The next day after the arrest."

															"Q. Yes, when evidence was presented and you had the opportunity
to hear the testimony of the witnesses against you. Remember
that?"

															"A. Yes Sir."

															"Q. Mr. Bonnell testified; Captain Griffin testified; Deputy --
Chief Deputy White testified?"

															"A. Yes Sir."

															"Q. Kenneth Beamer testified?"

															"A. Yes Sir."

															"Q. You were there, weren't you?"

															"A. Yes Sir."

															"Q. And your lawyer was there, -- Mr. James?"

															"A. Yes Sir."

															"Q. Tape recording was made of the transcript?"

															"A. Yes Sir."

															"Q. Did you protest your innocence at that proceeding?"

															" * * * *" "A. I didn't -- everything that was done with that was done with
my attorney. My attorney did it."

															"Q. All right. The first time that you gave this version of the
fact was in the trial of Richard Wood, -- was it not?"

															" * * * *" "A. Yes Sir. It was the first time I was asked."

															"Q. All the time, you being innocent?"

															"A. Yes Sir."

															Doyle Tr. 50-508.

															Petitioner Wood was subjected to similar cross-examination at
his trial:

															"Q. [By the prosecutor.] As a matter of fact you never told
anyone that you had been set up until today?"

															" * * * *" "A. [By Wood.] Yes, I believe I did, sir."

															"Q. I assume you discussed it with your lawyer?"

															"A. Yes, I discussed it with my lawyer."

															"Q. And you heard the testimony and witnesses against you?"

															"A. Yes, sir."

															"Q. And were you aware Mr. James was able to obtain a tape
transcript of the proceedings?"

															"A. Yes."

															"Q. And you no doubt listened to those?"

															"A. I believe I did one time to Mr. Beamer."

															"Q. When might that have been?"

															"A. When in the hail house."

															"Q. So you protested your innocence?"

															"A. In a little room. I believe he asked us how do you let
people get away with people setting up friends like this. He said
Bill Bonnell is not your friend and I said no, but I figured he was
a good enough acquaintance he would do that."

															"Q. Where was that?"

															"A. Little room there."

															"Q. Ever been there before?"

															"A. Yes, sir."

															"Q. When?"

															" * * * *" "Q. Did you see me there?"

															"A. I didn't know who you were at the time. I believe you were
in and out of there."

															"Q. You didn't say anything to me, did you?"

															"A. No, I didn't know who you were then."

															Wood Tr. 470-472.

															[ Footnote 2/10 ]

															Under Ohio law, the preliminary hearing determines only whether
the defendant should be held for trial. The prosecution need
establish, at most, that a crime has been committed and that there
is "probable and reasonable cause" to hold the defendant for trial,
and the court need only find "substantial credible evidence" of the
charge against the defendant. Ohio Rev.Code Ann. §§ 2937.12,
2937.13 (Supp. 1973). Indeed, if a defendant has been indicated, no
hearing need be held. State v. Morris, 42 Ohio St.2d 307,
326, 329 N.E.2d 85, 97 (1975). Defense counsel thus will have no
incentive to divulge the defendant's case at the preliminary
hearing if the prosecution has presented substantial evidence of
guilt. Since that was the case here, no significant impeaching
inference may be drawn from petitioners' silence at that
proceeding.

															Petitioners' failure to refer to the "frame" at any time between
arrest and trial is somewhat more probative; for if the "frame"
story were true, one would have expected counsel to try to persuade
the prosecution to dismiss the charges in advance of trial.

															[ Footnote 2/11 ] Raffel was the last decision of this Court to address
the constitutionality of admitting evidence of a defendant's prior
silence to impeach his testimony upon direct examination. Raffel
had been charged with conspiracy to violate the National
Prohibition Act. An agent testified at his first trial that he had
admitted ownership of a drinking place; Raffel did not take the
stand. The trial ended in a hung jury, and upon retrial, the agent
testified as before. Raffel elected to testify and denied making
the statement, but he was cross-examined on his failure to testify
in the first trial. This Court held that the evidence was
admissible because Raffel had completely waived the privilege
against self-incrimination by deciding to testify. 271 U.S. at 271 U. S.
499 .

															Subsequent cases, decided in the exercise of this Court's
supervisory powers, have diminished the force of Raffel in
the federal courts. United States v. Hale, 422 U.
S. 171 ; Stewart v. United States, 366 U. S.
1 ; Grunewald v. United States, 353 U.
S. 391 . All three of these cases held that the
defendant's prior silence or prior claim of the privilege was
inadmissible for purposes of impeachment; all three distinguished Raffel on the ground that the Court there assumed that the
defendant's prior silence was significantly inconsistent with his
testimony on direct examination. Hale, supra at 422 U. S.
175 -176; Stewart, supra at 366 U. S. 5 -7; Grunewald, supra at 353 U. S.
418 -424. Two of the three cases relied upon the need to
protect the defendant's exercise of the privilege against
self-incrimination from unwarranted inferences of guilt, a
rationale that is not easily reconciled with the reasoning in Raffel that the decision to testify constitutes a complete
waiver of the protection afforded by the privilege. Compare
Hale, supra at 422 U. S. 180 and n. 7, and Grunewald, supra at 353 U. S.
423 -424, with Raffel, 271 U.S. at 271 U. S.
499 .

															[ Footnote 2/12 ]

															At Doyle's trial, the prosecutor made the following arguments to
the jury:

															"Diffuse what the true facts are; obscure the facts and
prosecute the prosecution."

															"A typical and classic defense, but keep in mind, when you are
considering the testimony of the law enforcement officers involved,
that not until, Ladies and Gentlemen, not until the trial of this
case and prior to this case, the trial of Richard Wood's case, that
anybody connected with the prosecution in this case had any idea
what stories would be told by Jefferson Doyle and Richard Wood. Not
the foggiest idea. Both of them told you on the witness stand that
neither one of them said a word to the law enforcement officials on
the scene --"

															" * * * *" "(continuing) on the scene at the point of their arrest, at the
Preliminary Hearing before Indictment in this case. Not a word that
they were innocent; that this was their position; that somehow,
they had been 'set-up.'"

															"So, when you evaluate the testimony of the Law Enforcement
Officials, consider --"

															" * * * *" "(continuing) -- what they had to deal with on the night in
question and the months subsequent to that."

															" * * * *" "Then they decide that they have been 'had' somehow. They have
been framed."

															"Now, remember, this fits with the facts as observed by the law
enforcement officers except the basic, crucial facts. Somehow, they
have been framed. So, if you can believe this, Ladies and
Gentlemen, they take off, chase Bill Bonnell around to give his
money back to him or ask him what he did to them, yet they don't
bother to tell the Law Enforcement Officers."

															"It is unbelievable. I think, when you go to the Jury Room,
Ladies and Gentlemen, you are going to decide what really
happened."

															" * * * *" "We have the Fifth Amendment. I agree with it. It is fundamental
to our sense and system of fairness, but if you are innocent
--"

															" * * * *" "(continuing) -- if you are innocent, Ladies and Gentlemen, if
you have been framed, if you have been set-on, etc. etc. etc., as
we heard in Court these last days, you don't say, when the law
enforcement officer says, 'You are under arrest,' -- you don't say,
-- 'I don't know what you are talking about.' You tell the truth.
You tell them what happened, and you go from there. You don't say,
-- 'I don't know what you are talking about,' -- and demand to see
your lawyer and refuse to permit a search of you vehicle, forcing
the law enforcement agents to get a search warrant."

															"If you're innocent, you just don't do it."

															Doyle Tr. 515-516, 519, 526.

															At Wood's trial, he made similar arguments:

															"The defense in this case was very careful to make no statements
at all until they had the benefit of hearing all the evidence
against them and had time to ascertain what they would admit and
what they would deny and how they could fit their version of the
story with the state's case. During none of this time did we ever
hear any business about a set-up or frame, or anything else. All
right."

															"Yes, it is the law of our land, and rightfully so, ladies and
gentlemen, that nobody must be compelled to incriminate themselves.
It is the 5th Amendment. No one can be forced to give testimony
against themselves where criminal action charges are pending. It is
a very fundamental right, and I am glad we have it."

															"The idea was nobody can convict himself out of his own mouth,
and it grew out of the days when they used to whip and beat and
extract statements from the defendants and get them to convict
themselves out of their own mouth, and I am glad we have that
right."

															"But ladies and gentlemen, there is one statement I am going to
make. If you are innocent, if you are innocent, if you have been
framed, if you have been set up as claimed in this case, when do
you tell it? When do you tell the policemen that?"

															" * * * *" "Think about it. After months -- after various proceedings and
for the first time? I am not going to say any more about that, but
I want you to think about it."

															Closing Argument of the Prosecutor 12-14, supplementing Wood
Tr.

															[ Footnote 2/13 ]

															Petitioner Doyle also argues that he was erroneously
cross-examined at his trial on his failure to consent to a search
of the car he was driving at the time of the arrest. Petitioner
Wood appears to raise the similar claim that testimony of other
witnesses that he failed to consent to a search of the car was
erroneously admitted at his trial. The parties have not argued
these issues separately from the questions whether prior silence in
various circumstances may be admitted to impeach a defendant or a
defense witness. It is apparent, however, that these questions
implicate Fourth Amendment issues that merit independent
examination. Accordingly, like the Court, I do not address
them.

Summary: The Supreme Court held that it is a violation of the Fourteenth Amendment's Due Process Clause to use a defendant's post-arrest silence, after receiving Miranda warnings, for impeachment purposes at trial. The Court found that such silence is "insolubly ambiguous" and that it would be unfair to imply that the defendant's silence can be used against them, as the Miranda warnings assure them of their right to remain silent without penalty.