Are There Consequences of Remaining Silent ?
In Doyle v. Ohio (1976) 426 U.S. 610, the United States Supreme Court held that this federal constitutional right to remain silent carries an implicit assurance that silence will carry no penalty. (Doyle, supra, 426 U.S. at p. 618; see also Miranda v. Arizona (1966) 384 U.S. 436 "It is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.".)
The facts, holding, and reasoning in Doyle are illustrative.
There, the defendants had taken the witness stand and offered an exculpatory explanation for their participation in what the prosecution's evidence had portrayed as a routine marijuana sale transaction. (Doyle, supra, 426 U.S. at pp. 611, 613.)
The narcotics agent who arrested them read to them their Miranda rights and began questioning them. (Id. at pp. 612, 614.)
On cross-examination, the prosecutor impeached their testimony by asking them why they had not given the exculpatory explanation to the agent at the time of their arrest when he questioned them. (Id. at pp. 613-614.)
The Supreme Court held that "use of the defendants' post-arrest silence in this manner" (id. at p. 611) was fundamentally unfair and, thus, violated the due process clause of the Fourteenth Amendment. (Id. at p. 619.)
The Doyle court explained that, "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" (id. at p. 618), and concluded that, "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." (Ibid.)
In a later decision, the high federal court clarified that, "with respect to post-Miranda warnings 'silence,' . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted." (Wainwright v. Greenfield (1986) 474 U.S. 284, 295, fn. 13 (Wainwright), italics added.)