Jenkins v. Anderson

In Jenkins v. Anderson, 447 U.S. 231 (1980), the defendant took the stand and the prosecutor made reference to the defendant's failure to speak before he was taken into custody and given his Miranda warnings. The Court held that the use of pre-custodial silence to impeach the credibility of a defendant does not violate the Fifth and Fourteenth Amendments because "impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial." Jenkins, 447 U.S. at 238, 100 S. Ct. at 2129. However, the Jenkins Court declined to address whether, or to what extent, pre-custodial silence is protected under the Fifth Amendment, insofar as its use as substantive evidence of guilt is concerned, including whether the Jenkins rationale applies to a defendant who chooses not to take the stand. See id. at 236 n.2. The Court held that even if a defendant's pre-arrest silence is protected by the Fifth Amendment, impeachment by use of such silence does not violate the Fifth Amendment where the defendant testifies at trial. Jenkins, 447 U.S. at 238, 65 L. Ed. 2d at 94-95. However, the Court specifically declined to answer the question of whether a defendant's pre-arrest silence is constitutionally protected where the defendant continues to remain silent at trial: In this case, the defendant 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. The Court simply did not reach that issue because our prior case law clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent. Id. at 236 n.2, 65 L. Ed. 2d at 93 n.2.