447 U.S. 231 (1980)
On August 13, 1974, Jenkins stabbed and killed Doyle Redding in Michigan.1 Jenkins was not apprehended until he turned himself in to governmental authorities about two weeks later.2 At his state trial for first-degree murder, Jenkins testified that Redding had attacked him with a knife during an encounter the day after a robbery involving Jenkins' sister, that the two men struggled in an alley outside a bar, and that Jenkins had acted in self-defense.3
Jenkins further testified that after the stabbing he ran from the scene and did not report the incident to the police.4 On cross-examination the prosecutor asked Jenkins why he had not reported the stabbing to the police or anyone else before surrendering two weeks later, and Jenkins admitted he had not done so.5 The trial court overruled a defense objection to the questioning, and the prosecutor referred to Jenkins' prearrest silence again during closing argument.6
The jury convicted Jenkins of manslaughter and sentenced him to ten to fifteen years in prison.7 The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court denied leave to appeal.8 Jenkins then filed a petition for a writ of habeas corpus in federal district court, which denied the petition.9
The United States Court of Appeals for the Sixth Circuit reversed.10 The Supreme Court granted certiorari to resolve a conflict among the federal courts of appeals and state courts of last resort.11
Whether a criminal defendant's prearrest silence may be used to impeach his credibility if he testifies at trial?12
A defendant who testifies at trial waives his Fifth Amendment privilege. He may be impeached with his prior silence. The 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.13
Yes. Jenkins stabbed and killed Doyle Redding on August 13, 1974, and turned himself in two weeks later.14 At trial Jenkins claimed self-defense after Redding attacked him with a knife.15 He further testified that he ran from the scene without reporting the incident.16
On cross-examination the prosecutor elicited Jenkins' admission that he had not reported the stabbing to police or anyone else before surrendering.17 The trial court allowed the questioning over objection, and the prosecutor highlighted the prearrest silence in closing.18 The jury convicted Jenkins of manslaughter.19 The Sixth Circuit reversed on constitutional grounds.20 The Supreme Court granted certiorari and reversed.21
The prosecutor's use of Jenkins' prearrest silence for impeachment did not violate the Constitution. Jenkins elected to testify and thereby waived his Fifth Amendment privilege. This subjected him to cross-examination on his prior silence as permitted by the rule that a testifying defendant may be impeached like any other witness.22
A criminal defendant's prearrest silence may be used to impeach his credibility if he testifies at trial.23
Related opinions on this issue
Justice Stewart concurred in the Court's opinion.24 He wrote separately to emphasize that the Court's holding is limited to the use of a defendant's prearrest silence for impeachment purposes.25 The Court does not decide whether a defendant's prearrest silence could be used as evidence of guilt in the prosecutor's case in chief.26
This limitation keeps the decision focused on the precise impeachment issue presented by the facts rather than broader questions about the use of silence as substantive evidence of guilt.27
Justice Stevens concurred in the judgment.28 He would reject the Fifth Amendment claim because the privilege against compulsory self-incrimination is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak.29 He would reject the due process claim for the reasons stated in his dissenting opinion in Doyle v. Ohio.30
In the prearrest context a citizen's voluntary choice to remain silent raises only an evidentiary question turning on probative value, not a constitutional issue under the Fifth Amendment.31 The two situations of trial silence and prearrest silence are fundamentally different because the central purpose of the Fifth Amendment privilege is to protect the defendant from being compelled to testify against himself at his own trial.32
Whether the use of a defendant's prearrest silence for impeachment purposes violates the Fifth Amendment privilege against self-incrimination?33
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.34 The privilege is a bar against the compulsion of testimony.35 A defendant who testifies waives his Fifth Amendment privilege and subjects himself to cross-examination. Once a defendant takes the stand his credibility may be impeached like that of any other witness.36
No. Jenkins elected to testify at his state trial.37 He thereby waived his Fifth Amendment privilege and subjected himself to cross-examination.38 The prosecutor's questions concerning Jenkins' prearrest silence were an appropriate means of impeaching his credibility under the established rule that a testifying defendant may be impeached with prior silence.39 The jury was instructed that Jenkins' decision not to testify could not be used as evidence of guilt.
There is no basis for concluding that the prosecutor's references to Jenkins' prearrest silence violated the Fifth Amendment.40
The use of a defendant's prearrest silence for impeachment purposes does not violate the Fifth Amendment privilege against self-incrimination.41
Related opinions on this issue
Justice White concurred in the judgment.42 The prosecutor's use of respondent's prearrest silence for impeachment purposes did not violate the Constitution.
Joined by Justice Brennan
Justice Marshall dissented.43 In his view the prosecutor's use of respondent's prearrest silence violated his rights under the Fifth and Fourteenth Amendments.44 The Fifth Amendment protects the right to remain silent and that right is not limited to postarrest post-Miranda situations.45
A defendant should not be penalized for exercising his constitutional right to remain silent before his arrest.46 The majority's distinction between prearrest and postarrest silence is untenable because the privilege against self-incrimination applies at all times.47 The use of prearrest silence for impeachment impermissibly burdens both the privilege and the right to testify in one's own defense.48 Forcing a defendant to choose between remaining silent before arrest and preserving the ability to testify credibly at trial places an intolerable burden on fundamental rights.49
Justice Stevens concurred in the judgment on the Fifth Amendment claim.50 He explained that the privilege against compulsory self-incrimination is simply irrelevant to a citizen's decision to remain silent when under no official compulsion to speak.51 Because the prearrest context involves no governmental coercion, the Fifth Amendment does not bar evidentiary use of the silence for impeachment.52
Justice Stevens emphasized that the prearrest context differs fundamentally from trial silence. No official compulsion exists. The decision to speak or remain silent raises only routine evidentiary questions about probative value rather than constitutional privilege issues.53
Whether the use of a defendant's prearrest silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment?54
The Doyle rule prohibiting impeachment with postarrest post-Miranda silence is based on the notion that Miranda warnings convey an implicit assurance to the defendant that his silence will not be used against him.55 Miranda warnings are not required in the absence of custodial interrogation.56 Therefore the Doyle rule does not apply to a defendant's prearrest silence. The prosecutor's use of prearrest silence for impeachment purposes did not violate the Due Process Clause of the Fourteenth Amendment.57
No. In this case Jenkins was not in custody at the time of his prearrest silence and no Miranda warnings had been given. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings.58 Consequently the fundamental unfairness present in Doyle is not present here.59 Impeachment by use of prearrest silence does not violate the Fourteenth Amendment.6061
The use of a defendant's prearrest silence for impeachment purposes does not violate the Due Process Clause of the Fourteenth Amendment.62
Related opinions on this issue
Justice Stevens concurred in the judgment on the due process claim.65 He rejected the due process argument for the reasons stated in his dissenting opinion in Doyle v. Ohio.66 The fairness of using prearrest silence for impeachment does not turn on the receipt of Miranda warnings, and any implicit assurance from those warnings is far from unqualified.67
Justice Stevens maintained that the fairness inquiry should focus on whether it is fair to infer that the defendant was silent because he was asserting his constitutional privilege. This inquiry applies rather than turning solely on the presence or absence of Miranda warnings.68