At his trial in a Michigan state court for first-degree murder,
petitioner testified that he acted in self-defense. On
cross-examination, the prosecutor questioned petitioner about the
fact that he was not apprehended until he surrendered to
governmental authorities about two weeks after the killing, and, in
closing argument, again referred to petitioner's prearrest silence,
thereby attempting to impeach petitioner's credibility by
suggesting that he would have spoken out if he had killed in
self-defense. Petitioner was convicted of manslaughter, and, after
his conviction was affirmed in the state courts, he sought habeas
corpus relief in Federal District Court, contending that his
constitutional rights were violated when the prosecutor questioned
him concerning prearrest silence. The District Court denied relief,
and the Court of Appeals affirmed.
1. The Fifth Amendment, as applied to the States through the
Fourteenth Amendment, is not violated by the use of prearrest
silence to impeach a criminal defendant's credibility. While the
Fifth Amendment prevents the prosecution from commenting on the
silence of a defendant who asserts the right to remain silent
during his criminal trial, it is not violated when a defendant who
testifies in his own defense is impeached with his prior silence.
Impeachment follows the defendant's own decision to cast aside his
cloak of silence and advances the truthfinding function of the
criminal trial. Cf. Raffel v. United States, 271 U.
; Harris v. New York, 401 U.
; Brown v. United States, 356 U.
. Pp. 447 U. S.
2. Nor does the use of prearrest silence to impeach a
defendant's credibility deny him the fundamental fairness
guaranteed by the Fourteenth Amendment. Common law traditionally
has allowed witnesses to be impeached by their previous failure to
state a fact in circumstances in which that fact naturally would
have been asserted. And each jurisdiction may formulate its own
rules of evidence to determine when prior silence is so
inconsistent with present statements that impeachment by reference
to such silence is probative. In this case, in which no
governmental action induced petitioner to remain silent before
arrest, Doyle v. Ohio, 426 U. S. 610
inapplicable. Pp. 447 U. S.
Page 447 U. S. 232
3. A state court is not required to allow impeachment through
the use of prearrest silence. Each jurisdiction is free to
formulate evidentiary rules defining the situations in which
silence is viewed a more probative than prejudicial. Pp.
447 U. S.
599 F.2d 1055, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined; and in all
but Part II of which STEWART, J., joined. STEWART, J., filed a
statement concurring in part and concurring in the judgment,
p. 447 U. S. 241
STEVENS, J., filed an opinion concurring in the judgment, in Part I
of which STEWART, J., joined, post,
p. 447 U. S. 241
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 447 U. S.
MR. JUSTICE POWELL delivered the opinion of the Court.
The question in this case is whether the use of prearrest
silence to impeach a defendant's credibility violates either the
Fifth or the Fourteenth Amendment to the Constitution.
On August 13, 1974, the petitioner stabbed and killed Doyle
Redding. The petitioner was not apprehended until he turned himself
in to governmental authorities about two weeks later. At his state
trial for first-degree murder, the petitioner contended that the
killing was in self-defense.
The petitioner testified that his sister and her boyfriend were
robbed by Redding and another man during the evening of August 12,
1974. The petitioner, who was nearby when the robbery occurred,
followed the thieves a short distance and reported their
whereabouts to the police. According to the petitioner's testimony,
the next day he encountered Redding,
Page 447 U. S. 233
who accused him of informing the police of the robbery. The
petitioner stated that Redding attacked him with a knife, that the
two men struggled briefly, and that the petitioner broke away. On
cross-examination, the petitioner admitted that during the struggle
he had tried "[t]o push that knife in [Redding] as far as [I]
could," App. 36, but maintained that he had acted solely in
During the cross-examination, the prosecutor questioned the
petitioner about his actions after the stabbing:
"Q. And I suppose you waited for the Police to tell them what
"A. No, I didn't."
"Q. You didn't?"
"Q. I see."
"And how long was it after this day that you were arrested, or
that you were taken into custody?"
at 33. After some discussion of the date on which
petitioner surrendered, the prosecutor continued:
"Q. When was the first time that you reported the things that
you have told us in Court today to anybody?"
"A. Two days after it happened."
"Q. And who did you report it to?"
"A. To my probation officer."
"Q. Well, apart from him?"
"A. No one."
"A. No one, but my -- "
"Q. (Interposing) Did you ever go to a Police Officer or to
"A. No, I didn't."
"Q. As a matter of fact, it was two weeks later, wasn't it?"
Page 447 U. S. 234
In closing argument to the jury, the prosecutor again referred
to the petitioner's prearrest silence. The prosecutor noted that
"waited two weeks, according to the testimony -- at least two
weeks before he did anything about surrendering himself or
reporting [the stabbing] to anybody."
at 43. The prosecutor contended that the petitioner
had committed murder in retaliation for the robbery the night
The petitioner was convicted of manslaughter and sentenced to 10
to 15 years' imprisonment in state prison. The Michigan Court of
Appeals affirmed the conviction, and the Michigan Supreme Court
denied leave to appeal. The petitioner then sought a writ of habeas
corpus from the Federal District Court for the Eastern District of
Michigan, contending that his constitutional rights were violated
when the prosecutor questioned him concerning prearrest silence. A
Federal Magistrate concluded that the petition for habeas corpus
relief should be denied. The District Court adopted the
Magistrate's recommendation. The United States Court of Appeals for
the Sixth Circuit affirmed. 599 F.2d 1055. This Court granted a
writ of certiorari. 444 U.S. 824 (1979). We now affirm. [Footnote 1
Page 447 U. S. 235
At trial, the prosecutor attempted to impeach the petitioner's
credibility by suggesting that the petitioner would have spoken out
if he had killed in self-defense. The petitioner contends that the
prosecutor's actions violated the Fifth Amendment as applied to the
States through the Fourteenth Amendment. The Fifth Amendment
guarantees an accused the right to remain silent during his
criminal trial, and prevents the prosecution from commenting on the
silence of a defendant who asserts the right. Griffin v.
California, 380 U. S. 609
380 U. S. 614
(1965). In this case, of course, the petitioner did not remain
silent throughout the criminal proceedings. Instead, he voluntarily
took the witness stand in his own defense.
This Court's decision in Raffel v. United States,
271 U. S. 494
(1926), recognized that the Fifth Amendment is not violated when a
defendant who testifies in his own defense is impeached with his
prior silence. The defendant in Raffel
was tried twice. At
the first trial, a Government agent testified that Raffel
earlier had made an inculpatory statement. The defendant did not
testify. After the first trial ended in deadlock the agent repeated
his testimony at the second trial, and Raffel
stand to deny making such a statement. Cross-examination revealed
had not testified at the first trial.
at 271 U. S. 495
n. The Court held that inquiry into prior silence was proper
"[t]he immunity from giving testimony is one which the defendant
may waive by offering himself as a witness. . . . When he takes the
stand in his own behalf, he does so as any other witness, and,
within the limits of the appropriate rules, he may be
cross-examined. . . ."
at 271 U. S.
-497. Thus, the Raffel
Court concluded that
the defendant was "subject to cross-examination
Page 447 U. S. 236
impeaching his credibility just like any other witness."
Grunewald v. United States, 353 U.
, 353 U. S. 420
(197). [Footnote 2
It can be argued that a person facing arrest will not remain
silent if his failure to speak later can be used to impeach him.
But the Constitution does not forbid "every government-imposed
choice in the criminal process that has the effect of discouraging
the exercise of constitutional rights." Chaffin v.
Stynchcombe, 412 U. S. 17
412 U. S. 30
(1973). See Corbitt v. New Jersey, 439 U.
, 439 U. S. 218
and n. 8 (1978). The "threshold question is whether compelling
the election impairs to an appreciable extent any of the policies
behind the rights involved.'" Chaffin v. Stynchcombe,
supra, at 412 U. S. 32,
quoting Crampton v. Ohio, decided with McGautha v.
California, 402 U. S. 183,
402 U. S. 213
(1971). [Footnote 3] The
Raffel Court explicitly
Page 447 U. S. 237
rejected the contention that the possibility of impeachment by
prior silence is an impermissible burden upon the exercise of Fifth
"We are unable to see that the rule that [an accused who]
testifies . . . must testify fully, adds in any substantial manner
to the inescapable embarrassment which the accused must experience
in determining whether he shall testify or not."
271 U.S. at 271 U. S. 499
This Court similarly defined the scope of the Fifth Amendment
protection in Harris v. New York, 401 U.
(1971). There, the Court held that a statement
taken in violation of Miranda v. Arizona, 384 U.
(1966), may be used to impeach a defendant's
credibility. Rejecting the contention that such impeachment
violates the Fifth Amendment, the Court said:
"Every criminal defendant is privileged to testify in his own
defense, or to refuse to do so. But that privilege
Page 447 U. S. 238
cannot be construed to include the right to commit perjury. . .
. Having voluntarily taken the stand, petitioner was under an
obligation to speak truthfully and accurately, and the prosecution
here did no more than utilize the traditional truth-testing devices
of the adversary process."
401 U.S. at 401 U. S. 225
See also Oregon v. Hass, 420 U. S. 714
420 U. S.
-723 (1975); Walder v. United States,
347 U. S. 62
347 U. S. 65
In determining whether a constitutional right has been burdened
impermissibly, it also is appropriate to consider the legitimacy of
the challenged governmental practice. See Chaffin v.
412 U. S. 32
, and n. 20. Attempted impeachment on
cross-examination of a defendant, the practice at issue here, may
enhance the reliability of the criminal process. Use of such
impeachment on cross-examination allows prosecutors to test the
credibility of witnesses by asking them to explain prior
inconsistent statements and acts. A defendant may decide not to
take the witness stand because of the risk of cross-examination.
But this is a choice of litigation tactics. Once a defendant
decides to testify,
"[t]he interests of the other party and regard for the function
of courts of justice to ascertain the truth become relevant, and
prevail in the balance of considerations determining the scope and
limits of the privilege against self-incrimination."
Brown v. United States, 356 U.
, 356 U. S. 156
Thus, impeachment follows the defendant's own decision to cast
aside his cloak of silence and advances the truthfinding function
of the criminal trial. We conclude that the Fifth Amendment is not
violated by the use of prearrest silence to impeach a criminal
The petitioner also contends that use of prearrest silence to
impeach his credibility denied him the fundamental fairness
guaranteed by the Fourteenth Amendment. We do not
Page 447 U. S. 239
agree. Common law traditionally has allowed witnesses to be
impeached by their previous failure to state a fact in
circumstances in which that fact naturally would have been
asserted. 3A J. Wigmore, Evidence § 1042, p 1056 (Chadbourn
rev.1970). Each jurisdiction may formulate its own rules of
evidence to determine when prior silence is so inconsistent with
present statements that impeachment by reference to such silence is
probative. For example, this Court has exercised its supervisory
powers over federal courts to hold that prior silence cannot be
used for impeachment where silence is not probative of a
defendant's credibility and where prejudice to the defendant might
result. See United States v. Hale, 422 U.
, 422 U. S.
-181 (1975); Stewart v. United States,
366 U. S. 1
366 U. S. 5
(1961); Grunewald v. United States,
353 U.S. at
353 U. S. 424
Only in Doyle v. Ohio, 426 U.
(1976), did we find that impeachment by silence
violated the Constitution. In that case, a defendant received the
warnings required by Miranda v. Arizona, supra
384 U. S.
-473, when he was arrested for selling marihuana. At
that time, he made no statements to the police. During his
subsequent trial, the defendant testified that he had been framed.
The prosecutor impeached the defendant's credibility on
cross-examination by revealing that the defendant remained silent
after his arrest. The State argued that the prosecutor's actions
were permissible, but we concluded that "the Miranda
decision compels rejection of the State's position." 426 U.S. at
426 U. S. 617
Page 447 U. S. 240
warnings inform a person that he has the right to remain silent
and assure him, at least implicitly, that his subsequent decision
to remain silent cannot be used against him. Accordingly,
"'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
at 426 U. S. 619
quoting United States v. Hale, supra
at 422 U. S.
-183 (WHITE, J., concurring in judgment). [Footnote 6
In this case, no governmental action induced petitioner to
remain silent before arrest. The failure to speak occurred before
the petitioner was taken into custody and given Miranda
warnings. Consequently, the fundamental unfairness present in
is not present in this case. We hold that
impeachment by use of prearrest silence does not violate the
Our decision today does not force any state court to allow
impeachment through the use of prearrest silence. Each jurisdiction
remains free to formulate evidentiary rules defining the situations
in which silence is viewed as more probative than prejudicial. We
merely conclude that the use of prearrest silence to impeach a
defendant's credibility does not
Page 447 U. S. 241
violate the Constitution. The judgment of the Court of Appeals
MR. JUSTICE STEWART concurs in the judgment, agreeing with all
but Part II of the opinion of the Court, and with Part I of the
opinion of MR. JUSTICE STEVENS concurring in the judgment.
The petitioner did not raise his constitutional claims during
his state court trial. Thus, the respondent argues that the rule of
Wainwright v. Sykes, 433 U. S. 72
(1977), bars consideration of the petitioner's habeas petition. But
the respondent failed to raise the Sykes
either the District Court or the Court of Appeals. Ordinarily, we
will not consider a claim that was not presented to the courts
below. See Dorszynski v. United States, 418 U.
, 418 U. S. 431
n. 7 (1974). Considerations of judicial efficiency demand that a
claim be presented before a case reaches this Court.
The applicability of the Sykes
"cause and prejudice" test
may turn on an interpretation of state law. See Rummel v.
Estelle, 445 U. S. 263
445 U. S. 267
n. 7 (1980). This Court's resolution of such a state law question
would be aided significantly by the views of other federal courts
that may possess greater familiarity with Michigan law.
Furthermore, application of the "cause and prejudice" standard may
turn on factual findings that should be made by a district court.
Accordingly, we do not consider the Sykes
issue in this
the defendant's decision not to testify at
his first trial was an invocation of his right to remain silent
protected by the Fifth Amendment. In this case, the petitioner
remained silent before arrest, but chose to testify at his trial.
Our decision today does not consider whether or under what
circumstances prearrest silence may be protected by the Fifth
Amendment. We simply do not reach that issue, because the rule of
clearly permits impeachment even if the prearrest
silence were held to be an invocation of the Fifth Amendment right
to remain silent.
In Crampton v. Ohio,
the Court considered a claim that
a murder defendant's right to remain silent was burdened
unconstitutionally because he could not argue for mitigation of
punishment without risking incrimination on the question of guilt.
The Court recognized that a defendant who speaks in his own defense
cannot avoid testifying fully.
"It has long been held that a defendant who takes the stand in
his own behalf cannot then claim the privilege against
cross-examination on matters reasonably related to the subject
matter of his direct examination. See, e.g., Brown v.
Walker, 161 U. S. 591
, 161 U. S.
-598 (1896); Fitzpatrick v. United States,
178 U. S.
, 178 U. S. 314
Brown v. United States, 356 U. S. 148
(1958). It is not
thought overly harsh in such situations to require that the
determination whether to waive the privilege take into account the
matters which may be brought out on cross-examination. It is also
generally recognized that a defendant who takes the stand in his
own behalf may be impeached by proof of prior convictions or the
like. See Spencer v. Texas,
[554, 384 U. S. 561
cf. Michelson v. United States, 335 U. S.
(1948); but cf. Luck v. United States,
U.S.App.D.C. 151, 348 F.2d 763 (1965); United States v.
401 F.2d 270 (CA2 1968)."
402 U.S. at 402 U. S.
The Court concluded that
"the policies of the privilege against compelled
self-incrimination are not offended when a defendant in a capital
case yields to the pressure to testify on the issue of punishment
at the risk of damaging his case on guilt."
at 402 U. S. 217
Subsequently, a petition for rehearing in Crampton
granted, and the underlying state court decision was vacated on
Eighth Amendment grounds. 408 U.S. 941 (1972).
Both MR. JUSTICE STEVENS, post
at 447 U. S.
-242, n. 2, and MR. JUSTICE MARSHALL, post
at 447 U.S. 252
that the constitutional rule of Raffel was limited by later
decisions of the Court. In fact, no Court opinion decided since
has challenged its holding that the Fifth Amendment
is not violated when a defendant is impeached on the basis of his
prior silence. In United States v. Hale, 422 U.
, 422 U. S. 175
n. 4 (1975), the Court expressly declined to consider the
constitutional question. The decision in Stewart v. United
States, 366 U. S. 1
was based on federal evidentiary grounds, not on the Fifth
Amendment. The Court in Grunewald v. United States,
353 U. S. 391
353 U. S. 421
(1957), stated that it was not required to reexamine
In all three cases, the Court merely considered
the question whether, as a matter of federal evidentiary law, prior
silence was sufficiently inconsistent with present statements as to
be admissible. See also n
MR. JUSTICE MARSHALL contends that the petitioner's prearrest
silence is not probative of his credibility. Post
447 U. S.
-250. In this case, that is a question of state
evidentiary law. In a federal criminal proceeding the relevance of
such silence, of course, would be a matter of federal law. See
United States v. Hale, supra
at 422 U. S. 181
MR. JUSTICE MARSHALL's further conclusion that introduction of the
evidence in this trial violated due process relies upon the Court's
reasoning in Doyle v. Ohio, 426 U.
(1976), and United States v. Hale.
at 447 U. S.
-250. But the Court's decision in Hale
rested upon nonconstitutional grounds, see n
otherwise distinguishable, see infra,
at 447 U. S.
The Court reached a similar result in Johnson v. United
States, 318 U. S. 189
(1943). A trial judge mistakenly told a defendant that he could
claim the privilege against self-incrimination. After the defendant
invoked the privilege, the prosecutor commented on the defendant's
refusal to speak. Under its supervisory power, this Court held that
the prosecutor's comments constituted error because the trial court
had assured the defendant that he might claim the protections of
the Fifth Amendment. The Court stated that "[e]lementary fairness
requires that an accused should not be misled on that score."
at 318 U. S. 197
see Doyle v. Ohio, supra
at 426 U. S. 618
n. 9. See also Raley v. Ohio, 360 U.
, 360 U. S.
MR. JUSTICE STEVENS, concurring in the judgment.
My approach to both of petitioner's constitutional claims
differs from the Court's. I would reject his Fifth Amendment claim
because the privilege against compulsory self-incrimination
] is simply irrelevant
to a citizen's decision to remain silent when he is under no
official compulsion to speak. I would reject his due process claim
for the reasons stated in my dissenting opinion in Doyle v.
Ohio, 426 U. S. 610
426 U. S.
The Court holds that a defendant who elects to testify in his
own behalf waives any Fifth Amendment objection to the use of his
prior silence for the purpose of impeachment. As the Court
correctly points out, this holding is squarely supported by
Raffel v. United States, 271 U. S. 494
which the Court upheld the use of a defendant's failure to take the
stand at his first trial to impeach his testimony on retrial.
Nevertheless, I would not rely on Raffel,
reliance incorrectly implies that a defendant's decision not to
testify at his own trial is constitutionally indistinguishable from
his silence in a pre-custody context. [Footnote 2/2
] But the two situations are fundamentally
Page 447 U. S. 242
In the trial context, it is appropriate to presume that a
defendant's silence is an exercise of his constitutional privilege
and to prohibit any official comment that might deter him from
exercising that privilege. [Footnote
] For the central purpose of the Fifth Amendment privilege
is to protect the defendant from being compelled to testify against
himself at his own trial. [Footnote
] Moreover, since a defendant's decision whether to
Page 447 U. S. 243
is typically based on the advice of his counsel, it often could
not be explained without revealing privileged communications
between attorney and client.
These reasons have no application in a prearrest context. The
fact that a citizen has a constitutional right to remain silent
when he is questioned has no bearing on the probative significance
of his silence before he has any contact with the police. We need
not hold that every citizen has a duty to report every infraction
of law that he witnesses in order to justify the drawing of a
reasonable inference from silence in a situation in which the
ordinary citizen would normally speak out. [Footnote 2/5
] When a citizen is under no official
Page 447 U. S. 244
either to speak or to remain silent, I see no reason why his
voluntary decision to do one or the other should raise any issue
under the Fifth Amendment. [Footnote
] For in determining whether the privilege is applicable,
the question is whether petitioner was in a position to have his
testimony compelled and then asserted his privilege, not simply
whether he was silent. A different view ignores the clear words of
the Fifth Amendment. See 447
fn2/1|>n. 1, supra.
Consequently, I would
simply hold that the admissibility of petitioner's failure to come
forward with the excuse of self-defense shortly after the stabbing
raised a routine evidentiary question that turns on the probative
significance of that evidence and presented no issue under the
Federal Constitution. [Footnote
For the reasons stated in Part I of my dissenting opinion in
Doyle v. Ohio,
426 U.S. at 620-626, I do not agree with
the Court's view that the warnings required by Miranda v.
Arizona, 384 U. S. 436
384 U. S. 479
contain an implicit assurance that subsequent silence may not be
used against the defendant.
Page 447 U. S. 245
at 447 U. S.
-240. As the Court actually acknowledged in
426 U.S. at 426 U. S.
-620, n. 11, any such implicit assurance is far from
being unqualified. [Footnote 2/8
Moreover, I continue to disagree with the Court's view, repeated
at 447 U. S. 240
that there was "fundamental unfairness present in Doyle.
In my judgment, the fairness or unfairness of using a defendant's
postarrest silence for impeachment purposes does not simply depend
on whether or not he received Miranda
warnings. Rather, it
primarily depends on whether it is fair to infer that the defendant
was silent because he was asserting his constitutional privilege.
In any event, since I was unpersuaded by the due process
rationale of Doyle,
] I readily concur in the Court's
rejection of a similar argument in this case.
MR. JUSTICE STEWART concurs in Part I of this opinion.
The Fifth Amendment provides in pertinent part:
"No person . . . shall be compelled in any criminal case to be a
witness against himself. . . ."
Moreover, there is a serious question about the continuing
vitality of Raffel.
In Johnson v. United States,
318 U. S. 189
318 U. S. 199
the Court stated that, when a trial judge
"grants the claim of privilege but allows it to be used against
the accused to his prejudice, we cannot disregard the matter. That
procedure has such potentialities of oppressive use that we will
not sanction its use in the federal courts over which we have
In Grunewald v. United States, 353 U.
, 353 U. S.
-424, the Court held that it was error to permit the
prosecutor, when cross-examining the defendant at trial, to use his
assertion of the Fifth Amendment privilege while a witness before
the grand jury for impeachment. In effect, the Court limited
to cases in which the probative value of the
cross-examination outweighed its possible impermissible effect on
the jury; see
353 U.S. at 353 U. S.
-421. Because the Court held the probative value of
the assertion of privilege to be negligible on the issue of the
defendant's credibility, it was
"not faced with the necessity of deciding whether
has been stripped of vitality by the later
Johnson case, supra,
or of otherwise reexamining
at 353 U. S. 421
Mr. Justice Black, writing for four Justices, would have expressly
"think of no special circumstances that would justify use of a
constitutional privilege to discredit or convict a person who
asserts it. The value of constitutional privileges is largely
destroyed if persons can be penalized for relying on them."
353 U.S. at 353 U. S.
See also Stewart v. United States, 366 U. S.
, 366 U. S. 5
United States v. Hale, 422 U. S. 171
422 U. S. 175
"For comment on the refusal to testify is a remnant of the
'inquisitorial system of criminal justice,' Murphy v.
Waterfront Comm'n, 378 U. S. 52
, 378 U. S.
, which the Fifth Amendment outlaws. It is a penalty
imposed by courts for exercising a constitutional privilege. It
cuts down on the privilege by making its assertion costly."
Griffin v. California, 380 U.
, 380 U. S. 614
"The Fifth Amendment protects the individual's right to remain
silent. The central purpose of the privilege against compulsory
self-incrimination is to avoid unfair criminal trials. It is an
expression of our conviction that the defendant in a criminal case
must be presumed innocent, and that the State has the burden of
proving guilt without resorting to an inquisition of the
Lefkowitz v. Cunningham, 431 U.
, 431 U. S. 810
(STEVENS, J., dissenting) (footnote omitted).
"The Fifth Amendment itself is predicated on the assumption that
there are innocent persons who might be found guilty if they could
be compelled to testify at their own trials. Every trial lawyer
knows that some truthful denials of guilt may be considered
incredible by a jury -- either because of their inherent
improbability or because their explanation, under
cross-examination, will reveal unfavorable facts about the witness
or his associates. The Constitution therefore gives the defendant
and his lawyer the absolute right to decide that the accused shall
not become a witness against himself."
Lakeside v. Oregon, 435 U. S. 333
435 U. S. 343
(STEVENS, J., dissenting) (footnote omitted).
There is, of course, no reason why we should encourage the
citizen to conceal criminal activity of which he has knowledge. In
Roberts v. United States, 445 U.
, 445 U. S.
-S58, we pointed out:
"Concealment of crime has been condemned throughout our history.
The citizen's duty to "raise the hue and cry' and report
felonies to the authorities," Branzburg v. Hayes,
408 U. S. 665,
408 U. S. 696
(1972), was an established tenet of Anglo-Saxon law at least as
early as the 13th century. 2 W. Holdsworth, History of English Law
101-102 (3d ed.1927); 4 id. at 521-522; see
Statute of Westminster First, 3 Edw. 1, ch. 9, p. 43 (1275);
Statute of Westminster Second, 13 Edw. 1, chs. 1, 4, and 6, pp.
112-115 (1285). The first Congress of the United States enacted a
statute imposing criminal penalties upon anyone who, "having
knowledge of the actual commission of [certain felonies,] shall
conceal, and not as soon as may be disclose and make known the same
to [the appropriate] authority. . . ." Act of Apr. 30, 1790, § 6, 1
Stat. 113. Although the term "misprision of felony" now has an
archaic ring, gross indifference to the duty to report known
criminal behavior remains a badge of irresponsible
"This deeply rooted social obligation is not diminished when the
witness to crime is involved in illicit activities himself. Unless
his silence is protected by the privilege against
self-incrimination, . . . the criminal defendant, no less than any
other citizen, is obliged to assist the authorities."
"Petitioner insists that he had a constitutional right to remain
silent and that no adverse inferences can be drawn from the
exercise of that right. We find this argument singularly
unpersuasive. The Fifth Amendment privilege against compelled
self-incrimination is not self-executing. At least where the
Government has no substantial reason to believe that the requested
disclosures are likely to be incriminating, the privilege may not
be relied upon unless it is invoked in a timely fashion."
Roberts v. United States, supra,
at 445 U. S.
Under my approach, assuming relevance, the evidence could have
been used not only for impeachment but also in rebuttal even had
petitioner not taken the stand.
It is interesting to note that MR. JUSTICE MARSHALL and MR.
JUSTICE BRENNAN share my view that the Miranda
did not create the right to remain silent or create
an otherwise unavailable objection to the use of the defendants'
silence for impeachment purposes. See post
at 447 U. S.
-248, n. 1. I do not, however, agree with their
assumption that a holding that evidence of silence is admissible
necessarily rests on the premise that a quiet person has any duty
to speak. See post
at 447 U. S.
-251, n. 4. A dog's failure to bark may be probative
whether or not he has been trained as a watchdog. Cf.
Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes
Generally, in the absence of an express assertion of the
privilege, the presumption is that the privilege was not exercised.
See Roberts v. United States, supra
at 445 U. S.
It strikes me as anomalous that, assuming Raffel v. United
States, 271 U. S. 494
a defendant who takes the stand is deemed
to waive his Fifth Amendment objection to the use of his pretrial
silence, but not to waive what I regard as a much less focussed,
and hence weaker, due process objection. Perhaps the Court's
opinion can best be understood by assuming that Raffel
not good law on its facts under the Doyle
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
Today the Court holds that a criminal defendant's testimony in
his own behalf may be impeached by the fact that
Page 447 U. S. 246
he did not go to the authorities before his arrest and confess
his part in the offense. The decision thus strikes a blow at two of
the foundation stones of our constitutional system: the privilege
against self-incrimination and the right to present a defense.
The Court's decision today is extraordinarily broad. It goes far
beyond a simple holding that the common law rule permitting
introduction of evidence of silence in the face of accusation or in
circumstances calling for a response does not violate the privilege
against self-incrimination. For in this case, the prosecution was
allowed to cast doubt on an accused's testimony that he acted in
self-defense by forcing him to testify that he did not go to the
police of his own volition, before he had been indicted, charged,
or even accused of any offense, and volunteer his version of the
The Court's holding that a criminal defendant's testimony may be
impeached by his prearrest silence has three patent -- and, in my
view, fatal -- defects. First, the mere fact of prearrest silence
is so unlikely to be probative of the falsity of the defendant's
trial testimony that its use for impeachment purposes is contrary
to the Due Process Clause of the Fourteenth Amendment. Second, the
drawing of an adverse inference from the failure to volunteer
incriminating statements impermissibly infringes the privilege
against self-incrimination. Third, the availability of the
inference for impeachment purposes impermissibly burdens the
decision to exercise the constitutional right to testify in one's
The use of prior silence for impeachment purposes depends, as
the majority recognizes, ante
at 447 U. S. 238
on the reasonableness
Page 447 U. S. 247
of an inference that it is inconsistent with the statements that
are to be impeached. If the defendant's prior silence does not make
it more likely that his trial testimony was false, the evidence is
simply irrelevant. Such an inference cannot fairly be drawn from
petitioner's failure to go to the police before any charges were
brought, admit that he had committed a homicide, and offer an
In order for petitioner to offer his explanation of
self-defense, he would necessarily have had to admit that it was he
who fatally stabbed the victim, thereby supplying against himself
the strongest possible proof of an essential element of criminal
homicide. It is hard to imagine a purer case of self-incrimination.
Since we cannot assume that, in the absence of official warnings,
individuals are ignorant of or oblivious to their constitutional
rights, we must recognize that petitioner may have acted in
reliance on the constitutional guarantee. In fact, petitioner had
most likely been informed previously of his privilege against
self-incrimination, since he had two prior felony convictions. App.
28. One who has at least twice before been given the
warnings, which carry the implied promise that
silence will not be penalized by use for impeachment purposes,
Doyle v. Ohio, 426 U. S. 610
(1976), may well remember the rights of which he has been informed,
and believe that the promise is still in force. Accordingly, the
inference that petitioner's conduct was inconsistent with his
exculpatory trial testimony is precluded. See Doyle v. Ohio,
supra; United States v. Hale, 422 U.
, 422 U. S.
-177 (1975). [Footnote
Page 447 U. S. 248
Moreover, other possible explanations for silence spring readily
to mind. It is conceivable that a person who had acted in
self-defense might believe that he had committed no crime, and
therefore had no call to explain himself to the police. Indeed, all
the witnesses agreed that, after the stabbing, the victim ran
across the street and climbed a flight of stairs before collapsing.
Initially, at least, then, petitioner might not have known that
there was a homicide to explain. Moreover, petitioner testified
that he feared retaliation if he went to the police. One need not
be persuaded that any of these possible explanations represents the
true reason for petitioner's conduct to recognize that the
availability of other plausible hypotheses vitiates the inference
on which the admissibility of the evidence depends. See United
States v. Hale, supra,
at 422 U. S.
-177, 422 U. S.
The Court implies that its decision is consistent with the
practice at common law; but, at common law, silence is admissible
to contradict subsequent statements only if the circumstances would
naturally have called for a response. For example, silence was
traditionally considered a tacit admission
Page 447 U. S. 249
if a statement made in the party's presence was heard and
understood by the party, who was at liberty to respond, in
circumstances naturally calling for a response, and the party
failed to respond. [Footnote 3/2
Silence was not considered an admission if any of the prerequisites
were absent, for in such a case, the failure to speak could be
explained other than as assent. Similarly, failure to assert a fact
could be used for impeachment if it would have been natural, under
the circumstances, to assert the fact. But the authority cited by
the majority in support of this proposition, ante
447 U. S. 239
makes it clear that the rule cannot be invoked unless the facts
affirmatively show that the witness was called on to speak,
circumstances which are not present in this case. [Footnote 3/3
] As we have previously observed, "[i]n
most circumstances, silence is so ambiguous that it is of little
probative force." United States v. Hale, supra,
422 U. S.
Since petitioner's failure to report and explain his actions
prior to his arrest was not probative of the falsity of his
testimony at trial, it was fundamentally unfair, and a
Page 447 U. S. 250
of due process to allow the jury to draw from that silence an
inference that his trial testimony was false. Doyle v. Ohio,
The use of prearrest silence for impeachment purposes also
violates the privilege against self-incrimination secured by the
Fifth and Fourteenth Amendments. The privilege prohibits the
government from imposing upon citizens any duty to present
themselves to the authorities and report their own wrongdoing.
See, e.g., Marchetti v. United States, 390 U. S.
(1968); Grosso v. United States,
390 U. S. 62
Haynes v. United States, 390 U. S. 85
(1968); Albertson v. SACB, 382 U. S.
(1965). As I have explained, in order to offer his
exculpatory explanation, petitioner would inevitably have had to
incriminate himself as to facts that would be crucial in any
subsequent prosecution. To penalize him for failing to relinquish
his privilege against self-incrimination by permitting the jury to
draw an adverse inference from his silence is to place an
impermissible burden on his exercise of the privilege. See
Griffin v. California, 380 U. S. 609
(1965). In practical effect, it replaces the privilege against
self-incrimination with a duty to incriminate oneself. The Court
attempts to avoid this conclusion by asserting that the burden does
not threaten the purposes underlying the Fifth Amendment. See
at 447 U. S. 236
But it is hard to see how the burden could be more substantial or
direct. [Footnote 3/4
Page 447 U. S. 251
It is sophistry to assert that the use of prearrest silence for
impeachment does not infringe the privilege against
self-incrimination because the fact of the silence will not come
out unless petitioner chooses to testify, see ante
447 U. S. 238
An accused has the absolute right to testify in his own defense, as
well as the absolute right to refuse to incriminate himself prior
to trial. He may not be forced to choose between those fundamental
guarantees. We may not ignore the commands of the Constitution by
asserting that the defendant brought his difficulties on himself by
exercising the precious right to present a defense. Nor should we
piously proclaim the protection of individual liberties but extend
that protection only to the prosecution's case in chief, while
ensuring that the evidence can come before the jury by the back
door. See Harris v.
Page 447 U. S. 252
New York, 401 U. S. 222
401 U. S.
-232 (1971) (BRENNAN, J., dissenting).
The Court's reasoning is not saved by it reliance on Raffel
v. United States, 271 U. S. 494
held that a defendant could be required,
upon testifying at a retrial, to disclose his failure to testify at
the earlier trial. In my view, Raffel
was wrongly decided;
our subsequent cases, without expressly overruling it, limited it
so severely as to appear to rob it of any continued vitality until
its resurrection today. In Grunewald v. United States,
353 U. S. 391
(1957), the Court read Raffel
as holding simply that a
defendant who testifies at a second trial cannot continue to take
advantage of the privilege asserted at the first trial. Instead, by
taking the stand the defendant "becomes subject to
cross-examination impeaching his credibility just like any other
witness." 353 U.S. at 353 U. S. 420
carefully pointed out that
"[t]he Court, in Raffel,
did not focus on the question
whether the cross-examination there involved was in fact probative
in impeaching the defendant's credibility."
The logical underpinnings of Raffel
cut away almost completely by Griffin v. California,
380 U. S. 609
(1965). [Footnote 3/5
] Thus, the
majority's statement that Raffel
holds that "the Fifth
Amendment is not violated when a defendant who testifies in his own
defense is impeached with his prior silence," ante
447 U. S. 235
is both simplistic and overbroad.
Page 447 U. S. 253
Further, the Court implies most unfairly that to exclude
evidence of petitioner's prior silence would be to countenance
perjury. See ante
at 447 U. S.
-238. The Court quotes from Harris v. New York,
but in that case, the defendant made two contradictory
statements at different times. It was logical to infer, absent an
explanation to the contrary, that the defendant was lying on one
occasion or the other. See also Walder v. United States,
347 U. S. 62
(1954). Here, there is only one statement, and a silence which is
not necessarily inconsistent with the statement. There is no basis
on which to conjure up the specter of perjury.
Finally, impeachment by prearrest silence impermissibly burdens
the constitutionally protected decision to testify in one's own
Under today's decision, a defendant who did not report his
conduct to the police at the first possible moment must, in
deciding whether to testify in his own defense, take into account
the possibility that, if he does testify the jury may be permitted
to add that omission to the reasons for disbelieving his defense.
This means that a person who thinks he may have done something
wrong must immediately decide, most likely without the assistance
of counsel, whether, if he is ever charged with an offense and
brought to trial, he may wish to take the stand. For if he may
later want to take the stand, he had better go to the police
station right away to preserve his exculpatory explanation of the
events -- even though, in so doing, he must incriminate himself and
provide evidence which may be crucial to his eventual conviction.
But if he decides not to incriminate himself, he may anticipate
that his right to testify in his own defense will be undermined by
the argument that his story is probably untrue because he did not
volunteer it to the police at the earliest opportunity. All of
these strategic decisions must be made before the individual
Page 447 U. S. 254
knows if he will be charged and of what offense he will be
To force persons to make this kind of choice between two
fundamental rights places an intolerable burden on the exercise of
those rights. "It cuts down on the privilege [of testifying in
one's own defense] by making its assertion costly," Griffin v.
at 380 U. S. 614
and is therefore forbidden.
I have explained why I believe the use for impeachment purposes
of a defendant's prearrest failure to volunteer his version of
events to the authorities is constitutionally impermissible. I
disagree not only with the Court's holding in this case, but as
well with its emerging conception of the individual's duty to
assist the State in obtaining convictions, including his own -- a
conception which, I believe, is fundamentally at odds with our
constitutional system. See, e.g., Roberts v. United
States, 445 U. S. 552
445 U. S.
-572 (1980) (MARSHALL, J., dissenting). This
conception disparages not only individual freedoms, but also the
social interest in preserving those liberties and in the integrity
of the criminal justice system. There is no doubt an important
social interest in enabling police and prosecutors to obtain
convictions. But the Court does not serve the Nation well by
subordinating to that interest the safeguards that the Constitution
guarantees to the criminal defendant.
E. Cleary, McCormick on Evidence § 161, pp.
355-356 (2d ed.1972). For this reason, I would not reach a
different result from that of Doyle v. Ohio
because, in Doyle,
the defendant had received the
warnings. The furnishing of the Miranda
warnings does not create the right to remain silent; that right is
conferred by the Constitution. I have no doubt that, if an accused
were interrogated in police custody without receiving the
warnings and remained silent, that silence would
be inadmissible despite the lack of warnings. In that situation, no
less than under the facts of Doyle,
silence is "insolubly
ambiguous." 426 U.S. at 426 U. S. 617
Thus, properly considered, the use in Doyle
silence for impeachment purposes was fundamentally unfair not
because it broke an implied promise by a single narcotics agent,
but because it broke a promise made by the United States
Constitution. Similarly, persons who are not taken into police
custody may rely on their privilege not to incriminate themselves
in failing to report their conduct to the police. Such silence is
also "insolubly ambiguous."
I do not regard the facts of Doyle
and this case as
analytically indistinguishable, however, for, in Doyle,
the possibility that the defendant may have known his
constitutional rights became a certainty when he was informed of
those rights by the police. I simply believe that, in both cases,
the existence of the privilege against self-incrimination renders
the probative value of the accused's silence so negligible that, in
view of its plainly prejudicial effect, the use of that silence for
impeachment purposes violates the defendant's federal right to due
process. That is why I disagree with the Court's statement that the
lack of probativeness of the evidence was merely "a question of
state evidentiary law." Ante
at 447 U. S. 239
McCormick, supra, 447
fn3/1|>n. 1, §§ 161, 270; 4 J. Wigmore, Evidence §§
1071, 1072 (J. Chadbourn rev.1970); Gamble, The Tacit Admission
Rule: Unreliable and Unconstitutional -- A Doctrine Ripe for
Abandonment, 14 Ga.L.Rev. 27 (1979); Brody, Admissions Implied from
Silence, Evasion and Equivocation in Massachusetts Criminal Cases,
42 B.U.L.Rev. 46 (1962); Heller, Admissions by Acquiescence, 15
U.Miami L.Rev. 161 (1960); Note, Tacit Criminal Admissions, 112
U.Pa.L.Rev. 210 (1963) .
The Wigmore treatise lists three categories of cases in which
silence may be used for impeachment:
"(1) Omissions in legal proceedings
to assert what
would naturally have been asserted under the circumstances."
"(2) Omissions to assert anything . . . when formerly
on the stand or elsewhere, the matter now dealt
"(3) Failure to take the stand at all. . . .
3A Wigmore, supra,
§ 1042, pp. 1056-1058 (footnotes
omitted, emphasis in original). Plainly, the omission to seek out
an opportunity to speak is not included within these categories. Of
all the cases cited by Wigmore involving silence by a criminal
defendant, not one involves prearrest silence by a suspect not in
the presence of law enforcement officers.
I confess I find MR. JUSTICE STEVENS' view of the Fifth
Amendment incomprehensible. Apparently, under that view, a person's
right not to incriminate himself exists only if the government has
already attempted to compel him to do so. See ante
447 U. S.
-244 (opinion concurring in judgment). If no
officials have tried to get the person to speak, he evidently has a
duty to incriminate himself, because the reporting of crime is a
civic duty and the Fifth Amendment is not applicable, since the
decision to speak or remain silent is, at that time, "voluntary."
at 447 U. S.
But the prohibition against compelled self-incrimination is
another way of expressing the right not to incriminate oneself.
See, e.g., United States v. Burr,
25 F. Cas. 38, 39 (No.
14,692e) (CC Va. 1807) ("It is a settled maxim of law that no man
is bound to criminate himself"). After all, the only means of
compelling a person to incriminate himself is to penalize him if he
does not. Of course, the voluntary decision to remain silent in the
absence of any official compulsion does not "raise any issue under
the Fifth Amendment," ante
at 447 U. S. 244
(STEVENS, J., concurring in judgment), since there has been no
self-incrimination at all. A voluntary decision to speak also does
not implicate the Fifth Amendment, because the self-incrimination
was not compelled. But to impose a duty to report one's own crime
before an official accusation has been made would itself be to
compel self-incrimination, thus bringing the Fifth Amendment into
play. And, as Griffin v. California, 380 U.
(1965), makes plain, the Constitution also
prohibits the government from burdening the right not to
incriminate oneself by penalizing silence. In the present case, the
violation of the Fifth Amendment occurred not when the defendant
remained silent, but when that silence was later used against him
at his criminal trial.
MR. JUSTICE STEVENS relies heavily on Roberts v. United
States, 445 U. S. 552
(1980). That case held that a more severe sentence could be imposed
on a defendant as a result of his refusal to provide information
about criminal activities of other persons. The Court rejected
Roberts' Fifth Amendment claim on grounds plainly inapplicable to
"At least where the Government has no substantial reason to
believe that the requested disclosures are likely to be
incriminating, the privilege may not be relied upon unless it is
invoked in a timely fashion."
at 445 U. S. 559
but see id.
at 445 U. S.
-566 (MARSHALL, J., dissenting).
Mr. Justice Black's concurring opinion for four Members of the
Court in Grunewald,
which he would have decided on
constitutional grounds, rather than under the Court's supervisory
powers, eloquently foreshadowed the reasoning of
"I can think of no special circumstances that would justify use
of a constitutional privilege to discredit or convict a person who
asserts it. The value of constitutional privileges is largely
destroyed if persons can be penalized for relying on them. It seems
peculiarly incongruous and indefensible for courts which exist and
act only under the Constitution to draw inferences of lack of
honesty from invocation of a privilege deemed worthy of
enshrinement in the Constitution."
Grunewald v. United States, 353 U.
, 353 U. S.