Can You Use Defendant's Silence for Impeachment Purposes ?

In Doyle v. Ohio (1976) 426 U.S. 610, the United States Supreme Court held that "the use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment." (Doyle, supra, 426 U.S. at p. 619.) The case involved two defendants who exercised their right to remain silent after being arrested and given Miranda warnings. The defendants testified at trial, offering an exculpatory story to explain and refute the prosecution's evidence. On cross-examination the prosecutor asked the defendants why, if they were innocent, they did not provide their explanation to law enforcement at the time of their arrest. (Id. at pp. 612-615.) This form of impeachment was held to be fundamentally unfair since the Miranda warnings provide implicit assurances to an arrestee that there will be no penalty for invoking the right to remain silent. (Id. at p. 618.) Subsequent case law has limited the application of Doyle in certain contexts. For example, in Anderson v. Charles (1980) 447 U.S. 404, the Supreme Court clarified that Doyle does not apply to cross-examination about prior inconsistent statements which contain discrepancies or omissions of pertinent facts. (Anderson at p. 408.) "Each of two inconsistent descriptions of events may be said to involve 'silence' insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of the concept of silence." (Id. at p. 409.) If a defendant presents exculpatory testimony at trial that is inconsistent with earlier voluntary statements about the crime, the inconsistencies may be highlighted on cross-examination. (People v. Collins (2010) 49 Cal.4th 175, 203.) "Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Anderson, supra, 447 U.S. at p. 408.) Furthermore, Doyle does not apply to a defendant's pre-Miranda silence, whether such silence occurs before an arrest (People v. Earp (1999) 20 Cal.4th 826, 856-857) or after custodial detention (People v. Delgado (1992) 10 Cal.App.4th 1837, 1841). In People v. Eshelman (1990) 225 Cal.App.3d 1513 (Eshelman), the Second District Court of Appeal observed that "Doyle and the majority of the cases interpreting it concern a defendant's post-arrest failure to explain his conduct to the police." (Id. at p. 1520, original italics.) Only a small number of published cases have addressed the test for Doyle error when a defendant refrains from providing information about a crime to a private citizen. The Eshelman opinion offers guidelines for the latter scenario. Doyle applies when the evidence demonstrates that a defendant's silence in front of a private party resulted primarily from the conscious exercise of his or her constitutional right against self-incrimination and/or entitlement to counsel. (Ibid.) Failure to object on Doyle grounds and request a curative admonition results in a forfeiture of Doyle error claims. (People v. Tate (2010) 49 Cal.4th 635, 691-692; Collins, supra, 49 Cal.4th at p. 202.) The applicable standard of review requires us to presume defense counsel rendered adequate assistance and exercised reasonable professional judgment. (People v. Carter (2003) 30 Cal.4th 1166, 1211; People v. Holt (1997) 15 Cal.4th 619, 703.)