Can a prosecutor use post-arrest, post-Miranda silence to “impeach” a defendant?

Suppose two men illegally sell marijuana to undercover police officers. At their trials, both defendants claim that the officers framed them. In each trial, the prosecutor confronts the defendant about not telling this “frameup” story to the officer who arrested the men and immediately read them their Miranda rights.

The purpose of the prosecutor’s line of questioning was to impeach the defendants—to prove that they were lying on the stand. But the U.S. Supreme Court has held that prosecutors may not impeach testifying defendants in this way. In other words, they may not use defendants’ silence after being arrested and after being read the Miranda rights even for the limited purpose of discrediting testimony. (Doyle v. Ohio, 426 U.S. 610 (1976).)

There’s a critical distinction to be made here: Much depends on whether the defendant has been read the Miranda rights. If he’s been arrested, but not yet advised of the rights, his silence may well be appropriate fodder for impeachment. (See Can a prosecutor use post-arrest, pre-Miranda silence to “impeach” a defendant?)

For more on silence after arrest—including its use not for impeachment, but as substantive evidence of guilt—see Can the government use suspects' post-arrest, pre-Miranda silence against them?

For information on remaining silent before the point of arrest, see Invoking Your Right to Remain Silent.

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