1135 (10th Cir. 1996) (reference to post- arrest silence allowed but only to rebut defendant’s implication that he cooperated with police); McMillan v. Gomez, 19 F.3d 465, 469-70 (9th Cir. 1994) (ruling it was proper for counsel to refute defendant’s impression of cooperation with police with evidence of noncooperation). On the other hand, this court has warned that this exception “ ‘cannot be used as a pretext for the violation of a defendant’s constitutional rights where there is no justification for doing so.’ [Citations omitted.].” Murray, 285 Kan. at 522; see also United States v. Gant, 17 F.3d 935, 941-43 (7th Cir. 1994) (government crossed the fine fine between impeachment and inference of guilt, but error harmless); United States v. Shue, 766 F.2d 1122, 1130 (7th Cir. 1985) (<HOLDING>). There is an additional limitation on the
holding that the government cannot use postarrest silence against a defendant because miranda warnings give implicit assurances that silence will not be used against a person and accordingly it would be fundamentally unfair and a violation of due process to allow a defendants silence to be used to impeach him at trial holding that the government can use prearrest silence for impeachment purposes against a defendant because no government action induced the silence holding that comment on defendants silence was not reversible error because inter alia it did not have the effect of being probative on guilt or innocence holding government went too far and implied defendants silence was inconsistent with claim of innocence holding a prosecutor may not comment on a defendants silence