JENKINS v. ANDERSON, WARDEN
No. 78-6809.
Argued January 8, 1980
Decided June 10, 1980
Powell, J., delivered the opinion of the Court, in which BüRger, C. J., and White, Blacklmun, and RehNQuist, JJ., joined; and in all but Part II of which Stewart, J., joined. Stewart, J., filed a statement concurring in part and concurring in the judgment, post, p. 241. Stevens, J., filed an opinion concurring in the judgment, in Part I of which Stewart, J., joined, post, p. 241. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 245.
Carl Ziemba, by appointment of the Court, 444 U. S. 914, argued the cause and filed a brief for petitioner.
Robert A. Derengoski, Solicitor General of Michigan, argued the cause for respondent. With him on the brief were Frank J. Kelley, Attorney General, and Thomas L. Casey, Assistant Attorney General.
Mr. Justice Powell
delivered the opinion of the Court.
The question in this case is whether the use of prearrest silence to impeach a defendant’s credibility violates either the Fifth or the Fourteenth Amendment to the Constitution.
I
On August 13, 1974, the petitioner stabbed and killed Doyle Redding. The petitioner was not apprehended until he turned himself in to governmental authorities about two weeks later. At his state trial for first-degree murder, the petitioner contended that the killing was in self-defense.
The petitioner testified that his sister and her boyfriend were robbed by Redding and another man during the evening of August 12, 1974. The petitioner, who was nearby when the robbery occurred, followed the thieves a short distance and reported their whereabouts to the police. According to the petitioner’s testimony, the next day he encountered Red-ding, who accused him of informing the police of the robbery. The petitioner stated that Redding attacked him with a knife, that the two men struggled briefly, and that the petitioner broke away. On cross-examination, the petitioner admitted that during the struggle he had tried “[t]o push that knife in [Redding] as far as [I] could,” App. 36, but maintained that he had acted solely in self-defense.
During the cross-examination, the prosecutor questioned the petitioner about his actions after the stabbing:
“Q. And I suppose you waited for the Police to tell them what happened?
“A. No, I didn’t.
“Q. You didn’t?
“A. No.
“Q. I see.
“And how long was it after this day that you were arrested, or that you were taken into custody?” Id., at 33.
After some discussion of the date on which petitioner surrendered, the prosecutor continued:
“Q. When was the first time that you reported the things that you have told us in Court today to anybody? “A. Two days after it happened.
“Q. And who did you report it to?
“A. To my probation officer.
“Q. Well, apart from him?
“A. No one.
“Q. Who?
“A. No one but my—
“Q. (Interposing) Did you ever go to a Police Officer or to anyone else?
“A. No, I didn’t.
“Q. As a matter of fact, it was two weeks later, wasn’t it?
“A. Yes.” Id., at 34.
In closing argument to the jury, the prosecutor again referred to the petitioner’s prearrest silence. The prosecutor noted that petitioner had “waited two weeks, according to the testimony — at least two weeks before he did anything about surrendering himself or reporting [the stabbing] to anybody.” Id., at 43. The prosecutor contended that the petitioner had committed murder in retaliation for the robbery the night before.
The petitioner was convicted of manslaughter and sentenced to 10 to 15 years’ imprisonment in state prison. The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court denied leave to appeal. The petitioner then sought a writ of habeas corpus from the Federal District Court for the Eastern District of Michigan, contending that his constitutional rights were violated when the prosecutor questioned him concerning prearrest silence. A Federal Magistrate concluded that the petition for habeas corpus relief should be denied. The District Court adopted the Magistrate’s recommendation. The United States Court of Appeals for the Sixth Circuit affirmed. 599 F. 2d 1055. This Court granted a writ of certiorari. 444 U. S. 824 (1979). We now affirm.
II
At trial the prosecutor attempted to impeach the petitioner’s credibility by suggesting that the petitioner would have spoken out if he had killed in self-defense. The petitioner contends that the prosecutor’s actions violated thb Fifth Amendment as applied to the States through the Fourteenth Amendment. The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial, and prevents the prosecution from commenting on the silence of a defendant who asserts the right. Griffin v. California, 380 U. S. 609, 614 (1965). In this case, of course, the petitioner did not remain silent throughout the criminal proceedings. Instead, he voluntarily took the witness stand in his own defense.
This Court’s decision in Raffel v. United States, 271 U. S. 494 (1926), recognized that the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence. The defendant in Raffel was tried twice. At the first trial, a Government agent testified that Raffel earlier had made an inculpatory statement. The defendant did not testify. After the first trial ended in deadlock the agent repeated his testimony at the second trial, and Raffel took the stand to deny making such a statement. Cross-examination revealed that Raffel had not testified at the first trial. Id., at 495, n. The Court held that inquiry into prior silence was proper because “[t]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness. . . . When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined. . . .” Id., at 496-497. Thus, the Raffel Court concluded that the defendant was “subject to cross-examination impeaching his credibility just like any other witness.” Grunewald v. United States, 353 U. S. 391, 420 (1957).
It can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him. But the Constitution does not forbid “every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Chaffin v. Stynchcombe, 412 U. S. 17, 30 (1973). See Corbitt v. New Jersey, 439 U. S. 212, 218, and n. 8 (1978). The “ 'threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.’ ” Chaffin v. Stynchcombe, supra, at 32, quoting Crampton v. Ohio, decided with McGautha v. California, 402 U. S. 183, 213 (1971). The Raff el Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights. “We are unable to see that the rule that [an accused who] testifies . . . must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.” 271 U. S., at 499.
This Court similarly defined the scope of the Fifth Amendment protection in Harris v. New York, 401 U. S. 222 (1971). There the Court held that a statement taken in violation of Miranda v. Arizona, 384 U. S. 436 (1966), may be used to impeach a defendant’s credibility. Rejecting the contention that such impeachment violates the Fifth Amendment, the Court said:
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Haying voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.” 401 U. S., at 225.
See also Oregon v. Hass, 420 U. S. 714, 721-723 (1975); Walder v. United States, 347 U. S. 62, 65 (1954).
In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, at 32, and n. 20. Attempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, “[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” Brown v. United States, 356 U. S. 148, 156 (1958).
Thus, impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.
Ill
The petitioner also contends that use of prearrest silence to impeach his credibility denied him the fundamental fairness guaranteed by the Fourteenth Amendment. We do not agree. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadboum rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. For example, this Court has exercised its supervisory powers over federal courts to hold that prior silence cannot be used for impeachment where silence is not probative of a defendant’s credibility and where prejudice to the defendant might result. See United States v. Hale, 422 U. S. 171, 180-181 (1975); Stewart v. United States, 366 U. S. 1, 5 (1961); Grunewald v. United States, 353 U. S., at 424.
Only in Doyle v. Ohio, 426 U. S. 610 (1976), did we find that impeachment by silence violated the Constitution. In that case, a defendant received the warnings required by Miranda v. Arizona, supra, at 467-473, when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant’s credibility on cross-examination by revealing that the defendant remained silent after his arrest. The State argued that the prosecutor’s actions were permissible, but we concluded that “the Miranda decision compels rejection of the State’s position.” 426 U. S., at 617. Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, “ ‘it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.’ ” Id., at 619, quoting United States v. Hale, supra, at 182-183 (White, J., concurring in judgment).
In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.
IV
Our decision today does not force any state court to allow impeachment through the use of prearrest silence. Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial. We merely conclude that the use of prearrest silence to impeach a defendant’s credibility does not violate the Constitution. The judgment of the Court of Appeals is
Affirmed.
Mr. Justice Stewart concurs in the judgment, agreeing with all but Part II of the opinion of the Court, and with Part I of the opinion of Mr. Justice Stevens concurring in the judgment.
The petitioner did not raise his constitutional claims during his state-court trial. Thus, the respondent argues that the rule of Wainwright v. Sykes, 433 U. S. 72 (1977), bars consideration of the petitioner’s habeas petition. But the respondent failed to raise the Sykes question in either the District Court or the Court of Appeals. Ordinarily, we will not consider a claim that was not presented to the courts below. See Dorszynski v. United States, 418 U. S. 424, 431, n. 7 (1974). Considerations of judicial efficiency demand that a Sykes claim be presented before a case reaches this Court. The applicability of the Sykes “cause”-and-“prejudice” test may turn on an interpretation of state law. See Rummel v. Estelle, 445 U. S. 263, 267, n. 7 (1980). This Court’s resolution of such a state-law question would be aided significantly by the views of other federal courts that may possess greater familiarity with Michigan law. Furthermore, application of the “cause”-and-“prejudiee” standard may tum on factual findings that should be made by a district court. Accordingly, we do not consider the Sykes issue in this case.
In Raff el, the defendant’s decision not to testify at his first trial was an invocation of his right to remain silent protected by the Fifth Amendment. In this case, the petitioner remained silent before arrest, but chose to testify at his trial. Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of Raff el clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent.
In Crampton v. Ohio, the Court considered a claim that a murder defendant’s right to remain silent was burdened unconstitutionally because he could not argue for mitigation of punishment without risking incrimination on the question of guilt. The Court recognized that a defendant who speaks in his own defense cannot avoid testifying fully.
“It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e. g., Brown v. Walker, 161 U. S. 591, 597-598 (1896); Fitzpatrick v. United States, 178 U. S. 304, 314-316 (1900); Brown v. United States, 356 U. S. 148 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U. S. [554, 561 (1967)]; cf. Michelson v. United States, 335 U. S. 469 (1948); but cf. Luck v. United States, 121 U. S. App. D. C. 151, 348 F. 2d 763 (1965); United States v. Palumbo, 401 F. 2d 270 (CA2 1968).” 402 U. S., at 215.
The Court concluded that “the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt.” Id., at 217. Subsequently, a petition for rehearing in Crampton was granted and the underlying state-court decision was vacated on Eighth Amendment grounds. 408 U. S. 941 (1972).
Both MR. Justice Stevens, post, at 241-242, n. 2, and Mr. Justice Marshall, post, at 252, suggest that the constitutional rule of Raffel was limited by later decisions of the Court. In fact, no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence. In United States v. Hale, 422 U. S. 171, 175, n. 4 (1975), the Court expressly declined to consider the constitutional question. The decision in Stewart v. United States, 366 U. S. 1 (1961), was based on federal evidentiary grounds, not on the Fifth Amendment. The Court in Grunewald v. United States, 353 U. S. 391, 421 (1957), stated that it was not required to re-examine Raffel. In all three cases, the Court merely considered the question whether, as a matter of federal evidentiary law, prior silence was sufficiently inconsistent with present statements as to be admissible. See also n. 5, infra.
Mr. Justice Marshall contends that the petitioner’s prearrest silence is not probative of his credibility. Post, at 248-250. In this case, that is a question of state evidentiary law. In a federal criminal proceeding the relevance of such silence, of course, would be a matter of federal law. See United States v. Hale, supra, at 181. Mr. Justice Marshall’s further conclusion that introduction of the evidence in this trial violated due process relies upon the Court’s reasoning in Doyle v. Ohio, 426 U. S. 610 (1976), and United States v. Hale. Post, at 246-250. But the Court’s decision in Hale rested upon noneonstitutional grounds, see n. 4, supra, and Doyle is otherwise distinguishable, see infra, at 240.
The Court reached a similar result in Johnson v. United States, 318 U. S. 189 (1943). A trial judge mistakenly told a defendant that he could claim the privilege against self-incrimination. After the defendant invoked the privilege, the prosecutor commented on the defendant’s refusal to speak. Under its supervisory power, this Court held that the prosecutor’s comments constituted error because the trial court had assured the defendant that he might claim the protections of the Fifth Amendment. The Court stated that “[e]lementary fairness requires that an accused should not be misled on that score.” Id., at 197; see Doyle v. Ohio, supra, at 618, n. 9. See also Raley v. Ohio, 360 U. S. 423, 437-438 (1959).
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.