Doyle v. Ohio

Me. Justice Powell

delivered the opinion of the Court.

The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings¹ at the time of his arrest. We conclude that use of the defendant’s post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners.

I

Petitioners Doyle and Wood were arrested together and charged with selling 10 pounds of marihuana to a local narcotics bureau informant. They were convicted in the Common Pleas Court of Tuscarawas County, Ohio, in separate trials held about one week apart. The evidence at their trials was identical in all material respects.

The State’s witnesses sketched a picture of a routine marihuana transaction. William Bonnell, a well-known “street person” with a long criminal record, offered to assist the local narcotics investigation unit in setting up drug “pushers” in return for support in his efforts to receive lenient treatment in his latest legal problems. The narcotics agents agreed. A short time later, Bonnell advised the unit that he had arranged a “buy” of 10 pounds of marihuana and needed $1,750 to pay for it. Since the banks were closed and time was short, the agents were able to collect only $1,320. Bonnell took this money and left for the rendezvous, under surveillance by four narcotics agents in two cars. As planned, he met petitioners in a bar in Dover, Ohio. From there, he and petitioner Wood drove in Bonnell’s pickup truck to the nearby town of New Philadelphia, Ohio, while petitioner Doyle drove off to obtain the marihuana and then meet them at a prearranged location in New Philadelphia. The narcotics agents followed the Bonnell truck. When Doyle arrived at Bonnell’s waiting truck in New Philadelphia, the two vehicles proceeded to a parking lot where the transaction took place. Bonnell left in his truck, and Doyle and Wood departed in Doyle’s car. They quickly discovered that they had been paid $430 less than the agreed-upon price, and began circling the neighborhood looking for Bonnell. They were stopped within minutes by New Philadelphia police acting on radioed instructions from the narcotics agents. One of those agents, Kenneth Beamer, arrived on the scene promptly, arrested petitioners, and gave them Miranda warnings. A search of the car, authorized by warrant, uncovered the $1,320.

At both trials, defense counsel’s cross-examination of the participating narcotics agents was aimed primarily at establishing that, due to a limited view of the parking lot, none of them had seen the actual transaction but had seen only Bonnell standing next to Doyle’s car with a package under his arm, presumably after the transaction.² Each petitioner took the stand at his trial and admitted practically everything about the State’s case except the most crucial point: who was selling marihuana to whom. According to petitioners, Bonnell had framed them. The arrangement had been for Bonnell to sell Doyle 10 pounds of marihuana. Doyle had left the Dover bar for the purpose of borrowing the necessary money, but while driving by himself had decided that he only wanted one or two pounds instead of the agreed-upon 10 pounds. When Bonnell reached Doyle's car in the New Philadelphia parking lot, with the marihuana under his arm, Doyle tried to explain his change of mind. Bonnell grew angry, threw the $1,320 into Doyle’s car, and took all 10 pounds of the marihuana back to his truck. The ensuing chase was the effort of Wood and Doyle to catch Bonnell to find out what the $1,320 was all about.

Petitioners’ explanation of the events presented some difficulty for the prosecution, as it was not entirely implausible and there was little if any direct evidence to contradict it.³ As part of a wide-ranging cross-examination for impeachment purposes, and in an effort to undercut the explanation, the prosecutor asked each petitioner at his respective trial why he had not told the frameup story to Agent Beamer when he arrested petitioners. In the first trial, that of petitioner Wood, the following colloquy occurred: ⁴

“Q. [By the prosecutor.] Mr. Beamer did arrive on the scene?

“A. [By Wood.] Yes, he did.

“Q. And I assume you told him all about what happened to you?

“A. No.

“Q. You didn’t tell Mr. Beamer?

“A. No.

“Q. You didn’t tell Mr. Beamer this guy put $1,300 in your car?

“A. No, sir.

“Q. And we can’t understand any reason why anyone would put money in your car and you were chasing him around town and trying to give it back?

“A. I didn’t understand that.

“Q. You mean you didn’t tell him that?

“A. Tell him what?

“Q. Mr. Wood, if that is all you had to do with this and you are innocent, when Mr. Beamer arrived on the scene why didn’t you tell him?

“Q, But in any event you didn’t bother to tell Mr. Beamer anything about this?

“A. No, sir.”

Defense counsel’s timely objections to the above questions of the prosecutor were overruled. The cross-examination of petitioner Doyle at his trial contained a similar exchange, and again defense counsel’s timely objections were overruled.⁵

Each petitioner appealed to the Court of Appeals, Fifth District, Tuscarawas County, alleging, inter alia, that the trial court erred in allowing the prosecutor to cross-examine the petitioner at his trial about his post-arrest silence. The Court of Appeals affirmed the convictions, stating as to the contentions about the post-arrest silence:

“This was not evidence offered by the state in its case in chief as confession by silence or as substantive evidence of guilt but rather cross examination of a witness as to why he had not told the same story earlier at his first opportunity.

“We find no error in this. It goes to credibility of the witness.”

The Supreme Court of Ohio denied further review. We granted certiorari to decide whether impeachment use of a defendant’s post-arrest silence violates any provision of the Constitution,⁶ a question left open last Term in United States v. Hale, 422 U. S. 171 (1975), and on which the Federal Courts of Appeals are in conflict. See id., at 173 n. 2.

II

The State pleads necessity as justification for the prosecutor’s action in these cases. It argues that the discrepancy between an exculpatory story at trial and silence at time of arrest gives rise to an inference that the story was fabricated somewhere along the way, perhaps to fit within the seams of the State’s case as it was developed at pretrial hearings. Noting that the prosecution usually has little else with which to counter such an exculpatory story, the State seeks only the right to cross-examine a defendant as to post-arrest silence for the limited purpose of impeachment. In support of its position the State emphasizes the importance of cross-examination in general, see Brown v. United States, 356 U. S. 148, 154-155 (1958), and relies upon those cases in which this Court has permitted use for impeachment purposes of post-arrest statements that were inadmissible as evidence of guilt because of an officer’s failure to follow Miranda’s dictates. Harris v. New York, 401 U. S. 222 (1971); Oregon v. Hass, 420 U. S. 714 (1975); see also Walder v. United States, 347 U. S. 62 (1954). Thus, although the State does not suggest petitioners’ silence could be used as evidence of guilt, it contends that the need to present to the jury all information relevant to the truth of petitioners’ exculpatory story fully justifies the cross-examination that is at issue.

Despite the importance of cross-examination,⁷ we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U. S. 433, 443-444 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.⁸ See United States v. Hale, supra, at 177. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.⁹ Mr. Justice White, concurring in the judgment in United States v. Hale, supra, at 182-183, put it very well:

“[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that 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. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.” ¹⁰

We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.¹¹ The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners’ convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion.

So ordered.

1 Miranda v. Arizona, 384 U. S. 436, 467-473 (1966).

2 Defense counsel’s efforts were not totally successful. One of the four narcotics agents testified at both trials that he had seen the package passed through the window of Doyle’s car to Bonnell. In an effort to impeach that testimony, defense counsel played a tape of the preliminary hearing at which the same agent had testified only to seeing the package under Bonnell’s arm. The agent did not retract his trial testimony, and both he and the prosecutor explained the apparent inconsistency by noting that the examination at the preliminary hearing had not focused upon whether anyone had seen the package pass to Bonnell.

3 See n. 2, supra.

4 Trial transcript in Ohio v. Wood, No. 10657, Common Pleas Court, Tuscarawas County, Ohio (hereafter Wood Tr.), 465-470.

5 Trial transcript in Ohio v. Doyle, No. 10656, Common Pleas Court, Tuscarawas County, Ohio (hereafter Doyle Ti\), 504M507:

“Q. [By the prosecutor.] . . . You are innocent?

“A. [By Doyle.] I am innocent. Yes Sir.

“Q. That's why you told the police department and Kenneth Beamer when they arrived—

“A. ... I didn’t tell them about my innocence. No.

“Q. You said nothing at all about how you had been set up?

"Q. Did Mr. Wood?

“A. Not that I recall, Sir.

“Q. As a matter of fact, if I recall your testimony correctly, you said instead of protesting your innocence, as you do today, you said in response to a question of Mr. Beamer, — 'I don’t know what you are talking about.’

“A. I believe what I said, — ‘What’s this all about?’ If I remember, that’s the only thing I said.

“A. I was questioning, you know, what it was about. That’s what I didn’t know. I knew that I was trying to buy, which was wrong, but I didn’t know what was going on. I didn’t know that Bill Bonnell was trying to frame me, or what-have-you.

“Q. All right, — But you didn’t protest your innocence at that time?

“A. Not until I knew what was going on.”

In addition, the court in both trials permitted the prosecutor, over more objections, to argue petitioners’ post-arrest silence to the jury. Closing Argument of Prosecutor 13-14, supplementing Wood Tr.; Doyle Tr. 515, 526.

6 Petitioners also claim constitutional error because each of them was cross-examined by the prosecutor as to why he had not told the exculpatory story at the preliminary hearing or any other time prior to the trials. In addition, error of constitutional dimension is asserted because each petitioner was cross-examined as to post-arrest, preliminary hearing, and general pretrial silence when he testified as a defense witness at the other petitioner’s trial. These averments of error present different considerations from those implicated by cross-examining petitioners as defendants as to their silence after receiving Miranda warnings at the time of arrest. In view of our disposition of this case we find it unnecessary to reach these additional issues.

7 We recognize, of course, that unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge. See generally Fitzpatrick v. United States, 178 U. S. 304, 315 (1900).

8 The dissent by Mr. Justice Stevens expresses the view that the giving of Miranda warnings does not lessen the “probative value of [a defendant’s] silence . . . .” Post, at 621. But in United States v. Hale, 422 U. S. 171, 177 (1975), we noted that silence at the time of arrest may be inherently ambiguous even apart from the effect of Miranda warnings, for in a given case there may be several explanations for the silence that are consistent with the existence of an exculpatory explanation. In Hale we exercised our supervisory powers over federal courts. The instant cases, unlike Hale, come to us from a state court and thus provide no occasion for the exercise of our supervisory powers. Nor is it necessary, in view of our holding above, to express an opinion on the probative value for impeachment purposes of petitioners' silence. We note only that the Hale court considered silence at the time of arrest likely to be ambiguous and thus of dubious probative value.

9 A somewhat analogous situation was presented in Johnson v. United States, 318 U. S. 189 (1943). A defendant who testified at his trial was permitted by the trial judge to invoke the Fifth Amendment privilege against self-incrimination in response to certain questions on cross-examination. This Court assumed that it would not have been error for the trial court to have denied the privilege in the circumstances, see id., at 196, in which case a failure to answer would have been a proper basis for adverse inferences and a proper subject for prosecutorial comment. But because the privilege had been granted, even if erroneously, “the requirements of fair trial” made it error for the trial court to permit comment upon the defendant’s silence. Ibid.

“An accused having the assurance of the court that his claim of privilege would be granted might well be entrapped if his assertion of the privilege could then be used against him. His real choice might then be quite different from his apparent one. . . . Elementary fairness requires that an accused should not be misled on that score,” Id., at 197.

Johnson was decided under this Court’s supervisory powers over the federal courts. But the necessity for elementary fairness is not unique to the federal criminal system. Cf. Raley v. Ohio, 360 U. S. 423, 437-440 (1959).

10 The dissenting opinion relies on the fact that petitioners in this ease, when cross-examined about their silence, did not offer reliance on Miranda warnings as a justification. But the error we perceive lies in the cross-examination on this question, thereby implying an inconsistency that the jury might construe as evidence of guilt. After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right.

11 It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to ehafienge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F. 2d 1378, 1383 (CA5 1975).