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

You have the right to remain silent. You know you have this right, so after your arrest, even though the police haven’t yet read you your rights, you say nothing. Can the prosecution comment on your silence at trial? If so, for what purpose?

This article is about the use of post-arrest, pre-Miranda silence for impeachment. To learn about use of such silence as substantive evidence of guilt, read Can the government use suspects' post-arrest, pre-Miranda silence against them?

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

Impeached by Silence

Suppose two men scuffle in a nightclub parking lot. One emerges with stab wounds and ultimately dies. The other immediately leaves the scene.

On trial for murder, the man who left the scene decides to testify. He claims that he had been acting in self-defense and accidentally stabbed the victim. During cross-examination, the prosecutor asks why, after being arrested, but before being read his Miranda rights, the defendant didn’t offer this explanation to the police or give them the location of the knife.

The U.S. Supreme Court has held that prosecutors can use a defendant’s post-arrest, pre-Miranda silence in this way. In other words, the Court has said that the prosecution can use what the defendant didn't say—after being arrested but before receiving Miranda warnings—to impeach the defendant if he testifies. (“Impeach” in this context means to prove that the defendant has testified untruthfully.) (Fletcher v. Weir, 455 U.S. 603 (1982).)

But the Court has a different rule for silence that follows arrest and Miranda warnings. (See Can a prosecutor use post-arrest, post-Miranda silence to “impeach” a defendant?)

Results May Vary

Not all tribunals are in line with the highest court in the land on this impeachment issue. Some state courts interpret their own constitutions—rather than the federal Constitution—to prevent prosecutors from using post-arrest, pre-Miranda silence for impeachment.

To learn about the law that applies to your situation, consult a qualified criminal defense lawyer.

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