jenkins anderson argued january decided june trial michigan state murder petitioner testified acted prosecutor questioned petitioner fact apprehended surrendered governmental authorities two weeks killing closing argument referred petitioner silence thereby attempting impeach petitioner credibility suggesting spoken killed petitioner convicted manslaughter conviction affirmed state courts sought habeas corpus relief federal district contending constitutional rights violated prosecutor questioned concerning prearrest silence district denied relief appeals affirmed held fifth amendment applied fourteenth amendment violated use prearrest silence impeach criminal defendant credibility fifth amendment prevents prosecution commenting silence defendant asserts right remain silent criminal trial violated defendant testifies defense impeached prior silence impeachment follows defendant decision cast aside cloak silence advances truthfinding function criminal trial cf raffel harris new york brown pp use prearrest silence impeach defendant credibility deny fundamental fairness guaranteed fourteenth amendment common law traditionally allowed witnesses impeached previous failure state fact circumstances fact naturally asserted jurisdiction may formulate rules evidence determine prior silence inconsistent present statements impeachment reference silence probative case governmental action induced petitioner remain silent arrest doyle ohio inapplicable pp state required allow impeachment use prearrest silence jurisdiction free formulate evidentiary rules defining situations silence viewed probative prejudicial pp powell delivered opinion burger white blackmun rehnquist joined part ii stewart joined stewart filed statement concurring part concurring judgment post stevens filed opinion concurring judgment part stewart joined post marshall filed dissenting opinion brennan joined post carl ziemba appointment argued cause filed brief petitioner robert derengoski solicitor general michigan argued cause respondent brief frank kelley attorney general thomas casey assistant attorney general justice powell delivered opinion question case whether use prearrest silence impeach defendant credibility violates either fifth fourteenth amendment constitution august petitioner stabbed killed doyle redding petitioner apprehended turned governmental authorities two weeks later state trial murder petitioner contended killing petitioner testified sister boyfriend robbed redding another man evening august petitioner nearby robbery occurred followed thieves short distance reported whereabouts police according petitioner testimony next day encountered redding accused informing police robbery petitioner stated redding attacked knife two men struggled briefly petitioner broke away petitioner admitted struggle tried push knife redding far app maintained acted solely prosecutor questioned petitioner actions stabbing suppose waited police tell happened see long day arrested taken custody first time reported things told us today anybody two days happened report probation officer well apart one one interposing ever go police officer anyone else matter fact two weeks later yes petitioner convicted manslaughter sentenced years imprisonment state prison michigan appeals affirmed conviction michigan denied leave appeal petitioner sought writ habeas corpus federal district eastern district michigan contending constitutional rights violated prosecutor questioned concerning prearrest silence federal magistrate concluded petition habeas corpus relief denied district adopted magistrate recommendation appeals sixth circuit affirmed granted writ certiorari affirm ii trial prosecutor attempted impeach petitioner credibility suggesting petitioner spoken killed petitioner contends prosecutor actions violated fifth amendment applied fourteenth amendment fifth amendment guarantees accused right remain silent criminal trial prevents prosecution commenting silence defendant asserts right griffin california case course petitioner remain silent throughout criminal proceedings instead voluntarily took witness stand defense decision raffel recognized fifth amendment violated defendant testifies defense impeached prior silence defendant raffel tried twice first trial government agent testified raffel earlier made inculpatory statement defendant testify first trial ended deadlock agent repeated testimony second trial raffel took stand deny making statement revealed raffel testified first trial held inquiry prior silence proper immunity giving testimony one defendant may waive offering witness takes stand behalf witness within limits appropriate rules may thus raffel concluded defendant subject impeaching credibility like witness grunewald argued person facing arrest remain silent failure speak later used impeach constitution forbid every choice criminal process effect discouraging exercise constitutional rights chaffin stynchcombe see corbitt new jersey threshold question whether compelling election impairs appreciable extent policies behind rights involved chaffin stynchcombe supra quoting crampton ohio decided mcgautha california raffel explicitly rejected contention possibility impeachment prior silence impermissible burden upon exercise fifth amendment rights unable see rule accused testifies must testify fully adds substantial manner inescapable embarrassment accused must experience determining whether shall testify similarly defined scope fifth amendment protection harris new york held statement taken violation miranda arizona may used impeach defendant credibility rejecting contention impeachment violates fifth amendment said every criminal defendant privileged testify defense refuse privilege construed include right commit perjury voluntarily taken stand petitioner obligation speak truthfully accurately prosecution utilize traditional devices adversary process determining whether constitutional right burdened impermissibly also appropriate consider legitimacy challenged governmental practice see chaffin stynchcombe supra attempted impeachment defendant practice issue may enhance reliability criminal process use impeachment allows prosecutors test credibility witnesses asking explain prior inconsistent statements acts defendant may decide take witness stand risk choice litigation tactics defendant decides testify interests party regard function courts justice ascertain truth become relevant prevail balance considerations determining scope limits privilege brown thus impeachment follows defendant decision cast aside cloak silence advances function criminal trial conclude fifth amendment violated use prearrest silence impeach criminal defendant credibility iii petitioner also contends use prearrest silence impeach credibility denied fundamental fairness guaranteed fourteenth amendment agree common law traditionally allowed witnesses impeached previous failure state fact circumstances fact naturally asserted wigmore evidence chadbourn rev jurisdiction may formulate rules evidence determine prior silence inconsistent present statements impeachment reference silence probative example exercised supervisory powers federal courts hold prior silence used impeachment silence probative defendant credibility prejudice defendant might result see hale stewart grunewald doyle ohio find impeachment silence violated constitution case defendant received warnings required miranda arizona supra arrested selling marihuana time made statements police subsequent trial defendant testified framed prosecutor impeached defendant credibility revealing defendant remained silent arrest state argued prosecutor actions permissible concluded miranda decision compels rejection state position miranda warnings inform person right remain silent assure least implicitly subsequent decision remain silent used accordingly comport due process permit prosecution trial call attention silence time arrest insist speak facts case time told need unfavorable inference might drawn truth trial testimony quoting hale supra white concurring judgment case governmental action induced petitioner remain silent arrest failure speak occurred petitioner taken custody given miranda warnings consequently fundamental unfairness present doyle present case hold impeachment use prearrest silence violate fourteenth amendment iv decision today force state allow impeachment use prearrest silence jurisdiction remains free formulate evidentiary rules defining situations silence viewed probative prejudicial merely conclude use prearrest silence impeach defendant credibility violate constitution judgment appeals affirmed footnotes raffel defendant decision testify first trial invocation right remain silent protected fifth amendment case petitioner remained silent arrest chose testify trial decision today consider whether circumstances prearrest silence may protected fifth amendment simply reach issue rule raffel clearly permits impeachment even prearrest silence held invocation fifth amendment right remain silent crampton ohio considered claim murder defendant right remain silent burdened unconstitutionally argue mitigation punishment without risking incrimination question guilt recognized defendant speaks defense avoid testifying fully long held defendant takes stand behalf claim privilege matters reasonably related subject matter direct examination see brown walker fitzpatrick brown thought overly harsh situations require determination whether waive privilege take account matters may brought also generally recognized defendant takes stand behalf may impeached proof prior convictions like see spencer texas cf michelson cf luck app palumbo justice stevens post justice marshall post suggest constitutional rule raffel limited later decision fact opinion decided since raffel challenged holding fifth amendment violated defendant impeached basis prior silence hale expressly declined consider constitutional question decision stewart based federal evidentiary grounds fifth amendment grunewald stated required raffel three cases merely considered question whether matter federal evidentiary law prior silence sufficiently inconsistent present statements admissible see also infra justice marshall contends petitioner prearrest silence probative credibility post case question state evidentiary law federal criminal proceeding relevance silence course matter federal law see hale supra justice marshall conclusion introduction evidence trial violated due process relies upon reasoning doyle ohio hale post decision hale rested upon nonconstitutional grounds see supra doyle otherwise distinguishable see infra reached similar result johnson trial judge mistakenly told defendant claim privilege defendant invoked privilege prosecutor commented defendant refusal speak supervisory power held prosecutor comments constituted error trial assured defendant might claim protections fifth amendment stated lementary fairness requires accused misled score see doyle ohio supra see also raley ohio justice stevens concurring judgment approach petitioner constitutional claims differs reject fifth amendment claim privilege compulsory simply irrelevant citizen decision remain silent official compulsion speak reject due process claim reasons stated dissenting opinion doyle ohio holds defendant elects testify behalf waives fifth amendment objection use prior silence purpose impeachment correctly points holding squarely supported raffel upheld use defendant failure take stand first trial impeach testimony retrial nevertheless rely raffel reliance incorrectly implies defendant decision testify trial constitutionally indistinguishable silence precustody context two situations fundamentally different trial context appropriate presume defendant silence exercise constitutional privilege prohibit official comment might deter exercising privilege central purpose fifth amendment privilege protect defendant compelled testify trial moreover since defendant decision whether testify typically based advice counsel often explained without revealing privileged communications attorney client reasons application prearrest context fact citizen constitutional right remain silent questioned bearing probative significance silence contact police need hold every citizen duty report every infraction law witnesses order justify drawing reasonable inference silence situation ordinary citizen normally speak citizen official compulsion whatever either speak remain silent see reason voluntary decision one raise issue fifth amendment determining whether privilege applicable question whether petitioner position testimony compelled asserted privilege simply whether silent different view ignores clear words fifth amendment see supra consequently simply hold admissibility petitioner failure come forward excuse shortly stabbing raised routine evidentiary question turns probative significance evidence presented issue federal constitution ii reasons stated part dissenting opinion doyle ohio agree view warnings required miranda arizona contain implicit assurance subsequent silence may used defendant see ante actually acknowledged doyle see implicit assurance far unqualified moreover continue disagree view repeated today ante fundamental unfairness present doyle judgment fairness unfairness using defendant postarrest silence impeachment purposes simply depend whether received miranda warnings rather primarily depends whether fair infer defendant silent asserting constitutional privilege event since unpersuaded due process rationale doyle readily concur rejection similar argument case justice stewart concurs part opinion fifth amendment provides pertinent part person shall compelled criminal case witness moreover serious question continuing vitality raffel johnson stated trial judge grants claim privilege allows used accused prejudice disregard matter procedure potentialities oppressive use sanction use federal courts supervisory powers grunewald held error permit prosecutor defendant trial use assertion fifth amendment privilege witness grand jury impeachment effect limited raffel cases probative value outweighed possible impermissible effect jury see held probative value assertion privilege negligible issue defendant credibility faced necessity deciding whether raffel stripped vitality later johnson case supra otherwise raffel justice black writing four justices expressly overruled raffel think special circumstances justify use constitutional privilege discredit convict person asserts value constitutional privileges largely destroyed persons penalized relying see also stewart hale comment refusal testify remnant inquisitorial system criminal justice murphy waterfront fifth amendment outlaws penalty imposed courts exercising constitutional privilege cuts privilege making assertion costly griffin california omitted fifth amendment protects individual right remain silent central purpose privilege compulsory avoid unfair criminal trials expression conviction defendant criminal case must presumed innocent state burden proving guilt without resorting inquisition accused lefkowitz cunningham stevens dissenting omitted fifth amendment predicated assumption innocent persons might found guilty compelled testify trials every trial lawyer knows truthful denials guilt may considered incredible jury either inherent improbability explanation reveal unfavorable facts witness associates constitution therefore gives defendant lawyer absolute right decide accused shall become witness lakeside oregon stevens dissenting omitted course reason encourage citizen conceal criminal activity knowledge roberts pointed concealment crime condemned throughout history citizen duty raise hue cry report felonies authorities branzburg hayes established tenet law least early century holdsworth history english law ed see statute westminster first edw ch statute westminster second edw chs pp first congress enacted statute imposing criminal penalties upon anyone knowledge actual commission certain felonies shall conceal soon may disclose make known appropriate authority act apr stat although term misprision felony archaic ring gross indifference duty report known criminal behavior remains badge irresponsible citizenship deeply rooted social obligation diminished witness crime involved illicit activities unless silence protected privilege criminal defendant less citizen obliged assist authorities omitted petitioner insists constitutional right remain silent adverse inferences drawn exercise right find argument singularly unpersuasive fifth amendment privilege compelled least government substantial reason believe requested disclosures likely incriminating privilege may relied upon unless invoked timely fashion roberts supra approach assuming relevance evidence used impeachment also rebuttal even petitioner taken stand interesting note justice marshall justice brennan share view miranda warnings doyle create right remain silent create otherwise unavailable objection use defendants silence impeachment purposes see post however agree assumption holding evidence silence admissible necessarily rests premise quiet person duty speak see post dog failure bark may probative whether trained watchdog cf conan doyle silver blaze complete sherlock holmes generally absence express assertion privilege presumption privilege exercised see roberts supra strikes anomalous assuming raffel survived doyle defendant takes stand deemed waive fifth amendment objection use pretrial silence waive regard much less focused hence weaker due process objection perhaps opinion best understood assuming raffel good law facts doyle rationale justice marshall justice brennan joins dissenting today holds criminal defendant testimony behalf may impeached fact go authorities arrest confess part offense decision thus strikes blow two foundation stones constitutional system privilege right present defense decision today extraordinarily broad goes far beyond simple holding rule permitting introduction evidence silence face accusation circumstances calling response violate privilege case prosecution allowed cast doubt accused testimony acted forcing testify go police volition indicted charged even accused offense volunteer version events holding criminal defendant testimony may impeached prearrest silence three patent view fatal defects first mere fact prearrest silence unlikely probative falsity defendant trial testimony use impeachment purposes contrary due process clause fourteenth amendment second drawing adverse inference failure volunteer incriminating statements impermissibly infringes privilege third availability inference impeachment purposes impermissibly burdens decision exercise constitutional right testify one defense use prior silence impeachment purposes depends majority recognizes ante reasonableness inference inconsistent statements impeached defendant prior silence make likely trial testimony false evidence simply irrelevant inference fairly drawn petitioner failure go police charges brought admit committed homicide offer exculpatory explanation order petitioner offer explanation necessarily admit fatally stabbed victim thereby supplying strongest possible proof essential element criminal homicide hard imagine purer case since assume absence official warnings individuals ignorant oblivious constitutional rights must recognize petitioner may acted reliance constitutional guarantee fact petitioner likely informed previously privilege since two prior felony convictions app one least twice given miranda warnings carry implied promise silence penalized use impeachment purposes doyle ohio may well remember rights informed believe promise still force accordingly inference petitioner conduct inconsistent exculpatory trial testimony precluded see doyle ohio supra hale moreover possible explanations silence spring readily mind conceivable person acted might believe committed crime therefore call explain police indeed witnesses agreed stabbing victim ran across street climbed flight stairs collapsing initially least petitioner might known homicide explain moreover petitioner testified feared retaliation went police one need persuaded possible explanations represents true reason petitioner conduct recognize availability plausible hypotheses vitiates inference admissibility evidence depends see hale supra implies decision consistent practice common law common law silence admissible contradict subsequent statements circumstances naturally called response example silence traditionally considered tacit admission statement made party presence heard understood party liberty respond circumstances naturally calling response party failed respond silence considered admission prerequisites absent case failure speak explained assent similarly failure assert fact used impeachment natural circumstances assert fact authority cited majority support proposition ante makes clear rule invoked unless facts affirmatively show witness called speak circumstances present case previously observed circumstances silence ambiguous little probative force hale supra since petitioner failure report explain actions prior arrest probative falsity testimony trial fundamentally unfair deprivation due process allow jury draw silence inference trial testimony false doyle ohio supra use prearrest silence impeachment purposes also violates privilege secured fifth fourteenth amendments privilege prohibits government imposing upon citizens duty present authorities report wrongdoing see marchetti grosso haynes albertson sacb explained order offer exculpatory explanation petitioner inevitably incriminate facts crucial subsequent prosecution penalize failing relinquish privilege permitting jury draw adverse inference silence place impermissible burden exercise privilege see griffin california practical effect replaces privilege duty incriminate oneself attempts avoid conclusion asserting burden threaten purposes underlying fifth amendment see ante hard see burden substantial direct sophistry assert use prearrest silence impeachment infringe privilege fact silence come unless petitioner chooses testify see ante accused absolute right testify defense well absolute right refuse incriminate prior trial may forced choose fundamental guarantees may ignore commands constitution asserting defendant brought difficulties exercising precious right present defense piously proclaim protection individual liberties extend protection prosecution case chief ensuring evidence come jury back door see harris new york brennan dissenting reasoning saved reliance raffel raffel held defendant required upon testifying retrial disclose failure testify earlier trial view raffel wrongly decided subsequent cases without expressly overruling limited severely appear rob continued vitality resurrection today grunewald read raffel holding simply defendant testifies second trial continue take advantage privilege asserted first trial instead taking stand defendant becomes subject impeaching credibility like witness grunewald carefully pointed raffel focus question whether involved fact probative impeaching defendant credibility ibid logical underpinnings raffel cut away almost completely griffin california thus majority statement raffel holds fifth amendment violated defendant testifies defense impeached prior silence ante simplistic overbroad implies unfairly exclude evidence petitioner prior silence countenance perjury see ante quotes harris new york supra case defendant made two contradictory statements different times logical infer absent explanation contrary defendant lying one occasion see also walder one statement silence necessarily inconsistent statement basis conjure specter perjury finally impeachment prearrest silence impermissibly burdens constitutionally protected decision testify one defense today decision defendant report conduct police first possible moment must deciding whether testify defense take account possibility testify jury may permitted add omission reasons disbelieving defense means person thinks may done something wrong must immediately decide likely without assistance counsel whether ever charged offense brought trial may wish take stand may later want take stand better go police station right away preserve exculpatory explanation events even though must incriminate provide evidence may crucial eventual conviction decides incriminate may anticipate right testify defense undermined argument story probably untrue volunteer police earliest opportunity strategic decisions must made individual even knows charged offense accused force persons make kind choice two fundamental rights places intolerable burden exercise rights cuts privilege testifying one defense making assertion costly griffin california supra therefore forbidden ii explained believe use impeachment purposes defendant prearrest failure volunteer version events authorities constitutionally impermissible disagree holding case well emerging conception individual duty assist state obtaining convictions including conception believe fundamentally odds constitutional system see roberts marshall dissenting conception disparages individual freedoms also social interest preserving liberties integrity criminal justice system doubt important social interest enabling police prosecutors obtain convictions serve nation well subordinating interest safeguards constitution guarantees criminal defendant see also cleary mccormick evidence pp ed reason reach different result doyle ohio simply doyle defendant received miranda warnings furnishing miranda warnings create right remain silent right conferred constitution doubt accused interrogated police custody without receiving miranda warnings remained silent silence inadmissible despite lack warnings situation less facts doyle silence insolubly ambiguous thus properly considered use doyle silence impeachment purposes fundamentally unfair broke implied promise single narcotics agent broke promise made constitution similarly persons taken police custody may rely privilege incriminate failing report conduct police silence also insolubly ambiguous regard facts doyle case analytically indistinguishable however doyle possibility defendant may known constitutional rights became certainty informed rights police simply believe cases existence privilege renders probative value accused silence negligible view plainly prejudicial effect use silence impeachment purposes violates defendant federal right due process disagree statement lack probativeness evidence merely question state evidentiary law ante see mccormick supra wigmore evidence chadbourn rev gamble tacit admission rule unreliable unconstitutional doctrine ripe abandonment rev brody admissions implied silence evasion equivocation massachusetts criminal cases rev heller admissions acquiescence miami rev note tacit criminal admissions rev wigmore treatise lists three categories cases silence may used impeachment omissions legal proceedings assert naturally asserted circumstances omissions assert anything formerly narrating stand elsewhere matter dealt failure take stand wigmore supra pp footnotes omitted emphasis original confess find justice stevens view fifth amendment incomprehensible apparently view person right incriminate exists government already attempted compel see ante opinion concurring judgment officials tried get person speak evidently duty incriminate reporting crime civic duty fifth amendment applicable since decision speak remain silent time voluntary see ante prohibition compelled another way expressing right incriminate oneself see burr cas cc settled maxim law man bound criminate means compelling person incriminate penalize course voluntary decision remain silent absence official compulsion raise issue fifth amendment ante stevens concurring judgment since voluntary decision speak also implicate fifth amendment compelled impose duty report one crime official accusation made compel thus bringing fifth amendment play griffin california makes plain constitution also prohibits government burdening right incriminate oneself penalizing silence present case violation fifth amendment occurred defendant remained silent silence later used criminal trial justice stevens relies heavily roberts case held severe sentence imposed defendant result refusal provide information criminal activities persons rejected roberts fifth amendment claim grounds plainly inapplicable case least government substantial reason believe requested disclosures likely incriminating privilege may relied upon unless invoked timely fashion see marshall dissenting justice black concurring opinion four members grunewald decided constitutional grounds rather supervisory powers eloquently foreshadowed reasoning griffin think special circumstances justify use constitutional privilege discredit convict person asserts value constitutional privileges largely destroyed persons penalized relying seems peculiarly incongruous indefensible courts exist act constitution draw inferences lack honesty invocation privilege deemed worthy enshrinement constitution grunewald