They Can’t Use Your Silence Against You Here. But They Can There. And There. So What About This Other Place?

February 19, 2013
By Hanging Out with Carl Gunn


  • Post-Miranda silence can’t be used to impeach a defendant who testifies at trial.
  • But pre-Miranda silence, whether before or after arrest, can be used to impeach a defendant who testifies at trial.
  • Presently pending in the Supreme Court is the question of whether pre-Miranda, pre-arrest silence can be used against a defendant even when he doesn’t testify.


An e-mail I got last month about a recent Supreme Court cert grant triggered my memory of a series of Supreme Court line-drawing cases in the self-incrimination/Miranda area that I thought I’d share for those of you who don’t have the lines solidly down in your knowledge base already. The Supreme Court cert grant was on the question of whether the government can offer as substantive evidence of guilt a defendant’s pre-arrest, pre-Miranda refusal to answer a law enforcement officer’s questions. The case is Salinas v. Texas, No. 12-246, and the cert petition, brief in opposition, and reply can be found either on Westlaw – at 2012 WL 3645103, 2012 WL 6204238, and 2012 WL 6607874 – or on the SCOTUS blog here.

You may have thought that the obvious answer to this question was no, based on the fact that there’s a constitutional right to remain silent and the Supreme Court barred comment on silence at trial in Griffin v. California, 380 U.S. 609 (1965). That certainly seemed obvious to me when I started as a federal public defender. But it turns out it’s not so obvious – at least to some courts. The cert petition in Salinas nicely lays out what’s close to a 50-50 split in both the state courts and the federal courts. Even the Ninth Circuit case law appears unfavorable; it holds that evidence of pre-Miranda silence is not admissible if it’s post-arrest but is admissible if it’s pre-arrest. Compare United States v. Whitehead, 200 F.3d 634, 638-39 (9th Cir. 2000) (error to admit evidence of post-arrest, pre-Miranda silence and allow comment on silence in closing argument) with United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir. 1998) (joining two other circuits in holding pre-arrest silence admissible and “respectfully disagree[ing]” with three other circuits holding the contrary).

The Supreme Court has never considered the use of such silence in a case like Salinas where the defendant didn’t even testify at trial – which is far closer to Griffin and so seems especially obvious. But the Court has considered a number of different factual scenarios where the defendant did testify and the prior silence was used to impeach him on a “prior inconsistent statement” (or lack of statement) theory. And the Court has drawn the line differently in different scenarios.

The first scenario the Court considered was actually in a pair of cases – United States v. Hale, 422 U.S. 171 (1975) and Doyle v. Ohio, 426 U.S. 610 (1976). Hale held as a matter of federal evidentiary law that a defendant who had been advised of his Miranda rights and refused to make a statement but then testified at trial could not be impeached by his prior silence, because “[i]n most circumstances silence is so ambiguous that it is of little probative force.” Id., 422 U.S. at 176. Doyle then gave the rule constitutional status, based on an implicit assurance that Miranda warnings provide. The Court explained:

[W]hile 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 omitted.) Mr. Justice White, concurring in the judgment inUnited States v. Hale, supra, at 182-83, 95 S. Ct., at 2139, 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.”

Doyle, 426 U.S. at 618-19.

Doyle’s reliance on the implicit assurance provided by Miranda warnings set up the problem in the next two scenarios the Supreme Court considered – failure to make a statement prior to arrest, which the Court considered in Jenkins v. Anderson, 447 U.S. 231 (1980), and failure to make a statement after arrest but without being given Miranda warnings, which the Court considered in Fletcher v. Weir, 455 U.S. 603 (1982). The Court held that the earlier silence could be used to impeach the defendant’s testimony in each of these cases. The Court explained Doyle “as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him,” Fletcher, 455 U.S. at 606, and opined that the circumstances were different where there was not the implicit assurance of non-use of silence that the Miranda warnings provide.

So the constitutional rule as it stands now is that prior silence can be used to impeach testimony at trial if – but only if – the silence didn’t follow Miranda warnings. Whether it can be used even where the defendant didn’t testify will be decided in theSalinas case on which cert was just granted. And let’s hope the Supreme Court doesn’t go that far.