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 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 convicted. 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
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.
Respondent's silence during police interrogation
lacked significant probative value, and, under these circumstances,
any reference to his silence carried with it an intolerably
prejudicial impact. This Court, exercising its supervisory
authority over the lower federal courts, therefore concludes that
respondent is entitled to a new trial. Pp. 422 U. S.
(a) Under the circumstances of this case, the failure of
respondent, who had just been given the Miranda
to respond during custodial interrogation to inquiry about the
money can as easily connote reliance on the right to remain silent
as to support an inference that his trial testimony was a later
fabrication. Raffel v. United States, supra,
distinguished. Pp. 422 U. S.
(b) Respondent's prior silence was not so clearly inconsistent
with his trial testimony as to warrant admission into evidence of
that silence as evidence of 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
Page 422 U. S. 172
present; and (3) as the target of eyewitness identification, he
was clearly a "potential defendant." Grunewald v. United
States, 353 U. S. 391
followed. Pp. 422 U. S.
(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
warranted. P. 422 U. S.
162 U.S. App. D.C. 305, 498 F.2d 1038, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J.,
p. 422 U. S. 181
DOUGLAS, J., post,
p. 422 U. S. 182
and WHITE, J., post,
p. 422 U. S. 182
filed opinions concurring in the judgment. BLACKMUN, J., concurred
in the result.
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. [Footnote 1
] During cross-examination at trial, the
prosecutor asked respondent 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
Page 422 U. S. 173
to declare a mistrial. The Court of Appeals for the District 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
384 U. S. 468
n. 37 (1966). 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 during police interrogation,
] and because of the
importance of this question to the administration of justice.
We find that the probative value of respondent's pretrial
silence in this case was outweighed by the prejudicial 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.
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 accompany 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 captured.
Page 422 U. S. 174
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 claimed he
went to a narcotics treatment center, where he remained until after
the time of the robbery. According 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 possession 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 that money
"A. No, I didn't."
"Q. Why not?"
"A. I didn't feel that it was necessary at the time. "
Page 422 U. S. 175
The Government takes the position that, since the 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. [Footnote
] For this proposition, the Government relies heavily on this
Court's decision in Raffel v. United States, 271 U.
] There, a second trial was required when 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 second 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 proceeding. 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
is absent here. Rather, we find the circumstances
of this case closely parallel to those in Grunewald v. United
States, 353 U. S. 391
Page 422 U. S. 176
we conclude that the principles of that decision compel
A basic rule of evidence provides that prior inconsistent
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
(J. Chadbourn rev.1970) (hereafter Wigmore). If the Government
fails to establish a threshold inconsistency between silence at the
police station and later exculpatory testimony at trial, proof of
silence lacks any significant probative value, and must therefore
In most circumstances, silence is so ambiguous that it is of
little probative force. For example, silence is commonly thought to
lack probative value on the question of whether a person has
expressed tacit agreement or disagreement with contemporaneous
statements of others. See
4 Wigmore § 1071. 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 Wigmore §
1042. The Raffel
Court found that the circumstances of the
earlier confrontation naturally called for a reply. Accordingly,
the Court held that evidence of 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 government 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.
Page 422 U. S. 177
At the time of arrest and during custodial interrogation,
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. 657, 676 (1966). He may have maintained silence out of
fear or unwillingness to incriminate another. Or the arrestee may
simply react with silence in response to the hostile and perhaps
unfamiliar atmosphere surrounding his detention. In sum, the
inherent pressures of in-custody interrogation exceed those of
questioning before a grand jury, and compound the difficulty of
identifying the reason for silence. [Footnote 5
Respondent, for example, had just been given the
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 interrogation 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.
Our analysis of the probative value of silence before police
interrogators is similar to that employed in Grunewald v.
United States, supra.
In that case, a witness before a grand
jury investigating corruption in the Internal
Page 422 U. S. 178
Revenue Service declined to answer a series of questions on the
ground that the answers might tend to incriminate him. The witness,
Max Halperin, was later indicated 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-examination, 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
circumstances surrounding Halperin's appearance before the grand
jury justified his reliance on the Fifth Amendment, imposed no
mandate to speak, and presented valid reasons 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 admission of evidence of such silence as
evidence of a prior inconsistent "statement."
the Court identified three factors
relevant to determining whether silence was inconsistent with later
exculpatory testimony: (1) repeated assertions of innocence before
the grand jury; (2) the secretive nature of the tribunal in which
the initial questioning occurred; [Footnote 6
] and (3) 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 questions
Page 422 U. S. 179
for the very purpose of providing evidence against himself." 353
U.S. at 353 U. S.
Applying these factors here, it appears that this case is an
even stronger one for exclusion of the evidence than
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, which
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, 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
eyewitness identification, and had been arrested on suspicion of
having committed the offense.
The Government nonetheless contends that respondent'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 circumstances. On the facts of this case, we cannot
agree. Petitioner here had no reason to think that any explanation
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 evidence -- on an identification by the
complainant, his flight at that time, and his possession of $158.
In these circumstances,
Page 422 U. S. 180
he could not have expected the police to release him merely on
the strength of his explanation. Hale's prior contacts 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 probative
of an inconsistency with his in court testimony to warrant
admission of evidence thereof.
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 warranted. And permitting the defendant to explain
the reasons for his silence is unlikely 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: "When the risk of confusion is so
great as to upset the balance of advantage, the evidence goes out."
Shepard v. United States, 290 U. S.
, 290 U. S. 104
(1933). We now conclude that the respondent's silence during police
interrogation lacked significant probative value, and that any
reference to his silence under such circumstances carried with it
an intolerably prejudicial impact.
Page 422 U. S. 181
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
MR. JUSTICE BLACKMUN concurs in the result.
Respondent was tried in Federal District Court prior to the
effective date for the transfer of jurisdiction over D.C. Code
offenses under the District of Columbia Court Reform and Criminal
Procedure Act of 1970, Pub.L. 91-358, 84 Stat. 473.
Compare United States v. Semensohn,
421 F.2d 1206,
1209, (CA2 1970); United States v. Brinson,
411 F.2d 1057,
1060 (CA6 1969); Fowle v. United States,
410 F.2d 48 (CA9
1969); and Johnson v. Patterson,
475 F.2d 1066 (CA10),
414 U.S. 878 (1973), with United States
ex rel. Burt v. New Jersey,
475 F.2d 234 (CA3), cert.
414 U.S. 938 (1973); and United States v.
441 F.2d 950, 954 (CA5), cert. denied,
U.S. 869 (1971).
Immediately following the exchange, the court cautioned the jury
that the questioning was improper, and that they were to disregard
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. United States, 318 U.
(1943), and Griffin v. California,
380 U. S. 609
(1965). See Grunewald v. United States, 353 U.
, 353 U. S.
-426 (1957) (Black, J., concurring).
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).
"Innocent men are more likely to [remain silent] in secret
proceedings, where they testify without advice of counsel and
without opportunity for cross-examination, than in open court
proceedings, 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 States,
353 U.S. at 353 U. S. 422
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 matter has grave constitutional overtones . . . , we
feel justified in exercising this Court's supervisory control."
Grunewald v. United States,
353 U.S. at 353 U. S.
MR. CHIEF JUSTICE BURGER, concurring in the judgment.
I cannot escape the conclusion that this case is something 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 Grunewald v. United
States, 353 U. S. 391
(1957), see ante
at 422 U. S. 178
and n. 6. There, the Court casually elevated a fallacy into a
general 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, rather than the guilty, are the first to protest
their innocence. There is simply no basis for declaring a
generalized probability one way or the other. Second, the
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, if an accused is in
Page 422 U. S. 182
"open court," there is a constitutional option to remain totally
silent, but if an accused takes the stand, all admissible questions
must be answered. A nonparty witness has less option than the
accused, and must take the stand if called. We ought to be wary of
casual generalizations that read well, but "do not wash."
MR. JUSTICE DOUGLAS, concurring in the judgment.
I agree with the Court that the judgment below should be
"I do not, like the Court, rest my conclusion 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 person who asserts it."
Grunewald v. United States, 353 U.
, 353 U. S. 425
(1957) (concurring opinion). My view of this case is therefore
controlled by Miranda v. Arizona, 384 U.
(1966). I do not accept the idea that
loses its force in the context of impeaching the
testimony of a witness. See Harris v. New York,
401 U. S. 222
(1971). In my opinion, Miranda
should be given full
I also believe, as does my Brother WHITE, 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.
MR. JUSTICE WHITE, concurring in the judgment.
I am no more enthusiastic 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 informed, as Miranda
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
Page 422 U. S. 183
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. Cf. Johnson v. United
States, 318 U. S. 189
318 U. S.
-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
warnings that this would not be the case. I would
affirm on this ground.