Suspect's Silence as Substantive Evidence of Guilt

In Griffin v. California (1965) 380 U.S. 609 the court held that a defendant's choice not to testify at trial and to remain silent cannot be used against him by either the prosecutor in closing argument, or by the court in jury instructions. (Id. at p. 614 & fn. 5.) In Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), the court excluded a defendant's post-Miranda silence: "Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. . . . Miranda warnings contain no express assurance that silence will carry no penalty, however, 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." (Doyle, supra, 426 U.S. at pp. 617-618.) In Jenkins v. Anderson (1980) 447 U.S. 231, the court held that defendant's trial testimony could be impeached with his pre-Miranda, prearrest silence: "Attempted impeachment on cross-examination of a defendant . . . may enhance the reliability of the criminal process. . . . 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. . . . Thus, impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility." (Jenkins, supra, 447 U.S. at p. 238.) However, Jenkins declined to address the admissibility of a defendant's prearrest, pre-Miranda silence in situations other than impeachment of a testifying defendant. (Jenkins, supra, 447 U.S. at p. 236, fn. 2.) In his concurrence in Jenkins, Justice Stevens wrote that he would have rejected the defendant's Fifth Amendment claim simply because the privilege against compulsory self-incrimination is irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak. (See Jenkins, supra, at p. 241 (conc. opn. of Stevens, J.).) In Fletcher v. Weir (1982) 455 U.S. 603, the court addressed the admissibility of a defendant's postarrest, pre-Miranda silence to impeach his trial testimony. The court rejected the extension of Doyle to such a situation, and clarified that Doyle applied only when Miranda warnings have first been given. (Fletcher, supra, at pp. 605-607.) The court held Doyle is not violated when a defendant testifies and is cross-examined about his postarrest silence, where no Miranda warnings had been given following the arrest. (Fletcher, at p. 607.) "In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony." (Fletcher, supra, 455 U.S. at p. 607, italics added.) To summarize: Once an accused has been given the Miranda warnings, the accused's post-Miranda silence may not be used to impeach an explanation subsequently offered at trial. (Doyle, supra, 426 U.S. at pp. 619-620; People v. Medina (1990) 51 Cal.3d 870, 890; People v. O'Sullivan (1990) 217 Cal.App.3d 237, 244.) In contrast, the defendant's pre-Miranda, pre- and postarrest silence is admissible to impeach his or her trial testimony. (Fletcher, supra, 455 U.S. at p. 607; Jenkins, supra, 447 U.S. at p. 238; People v. Earp (1999) 20 Cal.4th 826, 856-857; People v. Delgado (1992) 10 Cal.App.4th 1837, 1842.)