NCJ Number
112879
Journal
William and Mary Law Review Volume: 29 Issue: 2 Dated: (Winter 1988) Pages: 285-340
Date Published
1988
Length
56 pages
Annotation
The constitutional and evidentiary problems presented by the use of silence to impeach a criminal defendant's testimony have plagued the U.S. Supreme Court since 1926.
Abstract
In Raffel v. United States, the Court held that a prosecutor could impeach a defendant who testified at a second trial with failure to testify in the prior trial. In Doyle v. Ohio, the Court concluded that the use of silence consequent to the Miranda warning to impeach a defendant was a deprivation of due process. In Jenkins v. Anderson, the Court held that prearrest silence could be used to impeach a defendant's exculpatory testimony, and in Fletcher v. Weir, it held that postarrest silence in the absence of the Miranda warnings could be used for impeachment. It is suggested that the reading of the Miranda warnings is irrelevant to the admissibility of a defendant's pretrial silence. It is argued that defendants who choose to remain silent do so in reliance on the fifth amendment privilege against self-incrimination rather than on the words contained in the Miranda warnings. Thus, the fairness of allowing the prosecutor to impeach the defendant's trial testimony with the prior silence does not depend on whether the warnings were read. Rather, the use of such silence violates the assurance implicit in the privilege against self-incrimination that silence will carry no penalty. 305 footnotes.