Miranda Warnings Preclude Impeachment with Silence
Officers with this belief should know people who have an innocent explanation for their actions are likely to give it immediately, rather than waiting several months or years to give it for the first time at their criminal trial. This reasoning explains the general rule that a defendant's story first told at trial can be impeached by pointing out that he never told the story to arresting officers, when an innocent person would logically have done so. However, whether the prosecutor will be permitted to use this impeachment technique will depend on whether arresting officers did-or did not-jump the gun with Miranda warnings, as illustrated by two U.S. Supreme Court rulings.
Doyle v. Ohio. Jefferson Doyle and another man were involved in a controlled drug transaction with a police informant. Upon Doyle's arrest, a narcotics officer immediately Mirandized him and Doyle made no statements. At trial, Doyle testified to facts that, if believed by a jury, would have constituted a defense based on his having been framed by the informant. The prosecutor impeached Doyle by showing that he did not tell this exculpatory story to the officers, suggesting that this story was contrived for trial. Doyle was convicted and appealed to the U.S. Supreme Court, which reversed. The court said this:
"Assurance that silence will carry no penalty is implicit to any person who receives the warnings. It would be fundamentally unfair to allow the arrested person's silence to be used to impeach [if silence was induced by the warnings]. We hold that the use for impeachment purposes of defendant's silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." (Doyle v. Ohio)
Fletcher v. Weir. Eric Weir was arrested for stabbing another man to death during a fight. He was not immediately Mirandized, and he offered no justification for his actions to arresting officers. At trial, Weir testified that he was acting in self-defense and that he stabbed the victim accidentally. He was impeached with the fact that he did not mention this defense to police at the time of his arrest. His conviction was upheld by the U.S. Supreme Court, which said the following:
"The significant difference between the present case and Doyle is that the record does not indicate that defendant received any Miranda warnings during the period in which he remained silent immediately after his arrest. In the absence of Miranda warnings, we do not believe that it violates due process to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." (Fletcher v. Weir)
In view of these two rulings, it is obvious that premature Miranda warnings at the time of arrest can deprive the prosecution of the ability to expose a defendant's untruthful testimony at trial, while waiting to Mirandize until custodial interrogation is imminent can provide the potential for such impeachment.
The Right Time to Mirandize
To ensure admissibility of statements, give Miranda warnings just before commencement of apparent custodial police interrogation-not sooner. Leave Hollywood tactics to the actors.
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."