Post-Miranda Silence As Substantive Evidence of Guilt
In Doyle v. Ohio, 426 U.S. 610 (1976) the Supreme Court held that it is a denial of due process for officials to tell a defendant, even erroneously, that he has the right to remain silent and to speak to an attorney, and then to use the resultant silence or request for an attorney as substantive evidence against him.
The Court explained:
Silence in the wake of the Miranda warnings may be nothing more than the arrestee's exercise of these Miranda rights.
Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. 171, at 177 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975).
Moreover, 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.
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. Mr. Justice White, concurring in the judgment in United States v. Hale, 422 U.S. at 182-183, put it very well:
When a person under arrest is informed, as Miranda requires, that 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 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. . . . 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 Miranda warnings that this would not be the case. Doyle, 426 U.S. at 617-19.
The Court's concern in Doyle is that a suspect not be treated like the child in the old story, who was on a high branch of a tree when the child's parent said, "Jump into my arms. Don't be afraid; I'll catch you." But when the child jumped, the parent stepped aside, and the child crashed to the ground.
The parent said, "Now remember: You can't trust anyone." the guaranty of fundamental fairness in the Due Process Clause forbids the government from making the Miranda promises and breaking them by using a suspect's exercise of a right as evidence against him.
The Court has underlined the distinction between Doyle and cases in which no Miranda warnings had been given.