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

Suppose an eventual defendant hasn’t been arrested yet. The police haven’t questioned him, nor has he come forward to tell them his version of events. After the defendant’s arrest, when he's testifying at his trial, may the prosecutor impeach him with his pre-arrest silence?

In Jenkins v. Anderson, the U.S. Supreme Court considered the case of one man who stabbed and killed another. (447 U.S. 231 (1980).) About two weeks after the homicide, the man who committed it turned himself in. At his eventual trial, he claimed that the killing was in self-defense. Deciding to take the stand, he testified that the victim attacked him with a knife. But during cross-examination and closing argument, the prosecutor suggested that if the defendant had really acted in self-defense, he wouldn’t have waited two weeks to go to the authorities or explain what happened.

Despite the Fifth Amendment’s privilege against self-incrimination, the Supreme Court held that a prosecutor may attack a testifying defendant in this way. In other words, the government may use a defendant’s pre-arrest silence to impeach her credibility at trial.

But the Jenkins Court mentioned that state courts don’t have to allow the use of pre-arrest silence to impeach a defendant. That said, some 23 years after the Jenkins decision, the Supreme Court went further on the issue of pre-arrest silence. To read about the use of pre-arrest silence for more than impeachment—as evidence of actual guilt—see Invoking Your Right to Remain Silent.

For information on silence after arrest, see Miranda and Post-Arrest silence. And to learn about the law that applies to your situation, consult a qualified criminal defense lawyer.

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