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DOYLE v. OHIO
CERTIORARI TO THE COURT OF APPEALS OF OHIO, TUSCARAWAS COUNTY
Argued February 23, 1976
Decided June 17, 1976 *
[ Footnote * ] Together with No. 75-5015, Wood v. Ohio, also on certiorari to the same court.
During the course of their state criminal trials petitioners, who after arrest were given warnings in line with Miranda v. Arizona, 384 U.S. 436, 467 -473, took the stand and gave an exculpatory story that they had not previously told to the police or the prosecutor. Over their counsel's objection, they were cross-examined as to why they had not given the arresting officer the exculpatory explanations. Petitioners were convicted, and their convictions were upheld on appeal. Held: The use for impeachment purposes of petitioner's silence, at the time of arrest and after they received Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. Post-arrest silence following such warnings is insolubly ambiguous; moreover, it would be fundamentally unfair to allow an arrestee's silence to be used to impeach an explanation subsequently given at trial after he had been impliedly assured, by the Miranda warnings, that silence would carry no penalty. Pp. 616-620.
Reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 620.
James R. Willis argued the cause for petitioners and filed briefs in both cases.
Ronald L. Collins argued the cause pro hac vice and filed a brief for respondent in both cases.Fn
Fn [426 U.S. 610, 610] Solicitor General Bork filed a brief for the United States as amicus curiae. [426 U.S. 610, 611]
MR. 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 warnings 1 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.
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 [426 U.S. 610, 612] 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 [426 U.S. 610, 613] 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
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:
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 [426 U.S. 610, 617] 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, [426 U.S. 610, 618] 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 [426 U.S. 610, 619]
MR. JUSTICE WHITE, concurring in the judgment in United States v. Hale, supra, at 182-183, put it very well:
[ Footnote 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.
[ Footnote 3 ] See n. 2. supra.
[ Footnote 4 ] Trial transcript in Ohio v. Wood. No. 10657. Common Pleas Court, Tuscarawas County, Ohio (hereafter Wood Tr.), 465-470.
[ Footnote 5 ] Trial transcript in Ohio v. Doyle, No. 10656, Common Pleas Court, Tuscarawas County, Ohio (hereafter Doyle Tr.), 504-507:
[ Footnote 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.
[ Footnote 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).
[ Footnote 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 [426 U.S. 610, 618] 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.
[ Footnote 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.
[ Footnote 10 ] The dissenting opinion relies on the fact that petitioners in this case, 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.
[ Footnote 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 [426 U.S. 610, 620] 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 challenge the defendant's testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975).
MR. JUSTICE STEVENS, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST join, dissenting.
Petitioners assert that the prosecutor's cross-examination about their failure to mention the purported "frame" until they testified at trial violated their constitutional right to due process and also their constitutional privilege against self-incrimination. I am not persuaded by the first argument; though there is merit in a portion of the second, I do not believe it warrants reversal of these state convictions.
The Court's due process rationale has some of the characteristics of an estoppel theory. If (a) the defendant is advised that he may remain silent, and (b) he does remain silent, then we (c) presume that his decision was made in reliance on the advice, and (d) conclude that it is unfair in certain cases, though not others, 1 to use his silence to impeach his trial testimony. The key to the Court's analysis is apparently a concern that the Miranda warning, which is intended to increase the probability [426 U.S. 610, 621] that a person's response to police questioning will be intelligent and voluntary, will actually be deceptive unless we require the State to honor an unstated promise not to use the accused's silence against him.
In my judgment there is nothing deceptive or prejudicial to the defendant in the Miranda warning. 2 Nor do I believe that the fact that such advice was given to the defendant lessens the probative value of his silence, or makes the prosecutor's cross-examination about his silence any more unfair than if he had received no such warning.
This is a case in which the defendants' silence at the time of their arrest was graphically inconsistent with their trial testimony that they were the unwitting victims of a "frameup" in which the police did not participate. If defendants had been framed, their failure to mention that fact at the time of their arrest is almost [426 U.S. 610, 622] inexplicable; for that reason, under accepted rules of evidence, their silence is tantamount to a prior inconsistent statement and admissible for purposes of impeachment. 3
Indeed, there is irony in the fact that the Miranda warning provides the only plausible explanation for their silence. If it were the true explanation, I should think that they would have responded to the questions on cross-examination about why they had remained silent by stating that they relied on their understanding of the advice given by the arresting officers. Instead, however, they gave quite a different jumble of responses. 4 Those [426 U.S. 610, 623] responses negate the Court's presumption that their silence was induced by reliance on deceptive advice.
Since the record requires us to put to one side the [426 U.S. 610, 624] Court's presumption that the defendants' silence was the product of reliance on the Miranda warning, the Court's entire due process rationale collapses. For without reliance [426 U.S. 610, 625] on the waiver, the case is no different than if no warning had been given, and nothing in the Court's opinion suggests that there would be any unfairness in [426 U.S. 610, 626] using petitioners' prior inconsistent silence for impeachment purposes in such a case.
Indeed, as a general proposition, if we assume the defendant's silence would be admissible for impeachment purposes if no Miranda warning had been given, I should think that the warning would have a tendency to salvage the defendant's credibility as a witness. If the defendant is a truthful witness, and if his silence is the consequence of his understanding of the Miranda warning, he may explain that fact when he is on the stand. Even if he is untruthful, the availability of that explanation puts him in a better position than if he had received no warning. In may judgment, the risk that a truthful defendant will be deceived by the Miranda warning and also will be unable to explain his honest misunderstanding is so much less than the risk that exclusion of the evidence will merely provide a shield for perjury that I cannot accept the Court's due process rationale.
Accordingly, if we assume that the use of a defendant's silence for impeachment purposes would be otherwise unobjectionable, I find no merit in the notion that he is denied due process of law because he received a Miranda warning.
Petitioners argue that the State violated their Fifth Amendment privilege against self-incrimination by asking the jury to draw an inference of guilt from their constitutionally protected silence. They challenge both the prosecutor's cross-examination and his closing argument.
Petitioners claim that the cross-examination was improper because it referred to their silence at the time of [426 U.S. 610, 627] their arrest, to their failure to testify at the preliminary hearing, and to their failure to reveal the "frame" prior to trial. Their claim applies to the testimony of each defendant at his own trial, and also to the testimony each gave as a witness at the trial of the other. Since I think it quite clear that a defendant may not object to the violation of another person's privilege, 5 I shall only discuss the argument that a defendant may not be cross-examined about his own prior inconsistent silence.
In support of their objections to the cross-examination about their silence at the time of arrest, petitioners primarily rely on the statement in Miranda v. Arizona, 384 U.S. 436 , that the prosecution may not use at trial the fact that the defendant stood mute or claimed the privilege in the face of accusations during custodial interrogation. 6 There are two reasons why that statement does not adequately support petitioners' argument.
First, it is not accurate to say that the petitioners "stood mute or claimed the privilege in the face of accusations." Neither petitioner claimed the privilege and [426 U.S. 610, 628] petitioner Doyle did not even remain silent. 7 The case is not one in which a description of the actual conversation between the defendants and the police would give rise to any inference of guilt if it were not so flagrantly inconsistent with their trial testimony. Rather than a claim of privilege, we simply have a failure to advise the police of a "frame" at a time when it most surely would have been mentioned if petitioners' trial testimony were true. That failure gave rise to an inference of guilt only because it belied their trial testimony.
Second, the dictum in the footnote in Miranda relies primarily upon Griffin v. California, 380 U.S. 609 , which held that the Fifth Amendment, as incorporated in the Fourteenth, prohibited the prosecution's use of the defendant's silence in its case in chief. But as long ago as Raffel v. United States, 271 U.S. 494 , this Court recognized the distinction between the prosecution's affirmative use of the defendant's prior silence and the use of prior silence for impeachment purposes. Raffel expressly held that the defendant's silence at a prior trial was admissible for purposes of impeachment despite the application in federal prosecutions of the prohibition that Griffin found in the Fifth Amendment. Raffel, supra, at 496-497.
Moreover, Mr. Chief Justice Warren, the author of the Court's opinion in Miranda, joined the opinion in Walder v. United States, 347 U.S. 62 , which squarely held that a valid constitutional objection to the admissibility of evidence as part of the Government's case in chief did not bar the use of that evidence to impeach the defendant's trial testimony. The availability of an objection to the affirmative use of improper evidence does not provide the defendant "with a shield against contradiction of his untruths." Id., at 65. The need to ensure the integrity [426 U.S. 610, 629] of the truth-determining function of the adversary trial process has provided the predicate for an unbroken line of decisions so holding. 8 [426 U.S. 610, 630]
Although I have no doubt concerning the propriety of the cross-examination about petitioners' failure to mention the purported "frame" at the time of their arrest, a more difficult question is presented by their objection to the questioning about their failure to testify at the preliminary hearing and their failure generally to mention the "frame" before trial. 9 Unlike the failure [426 U.S. 610, 631] to make the kind of spontaneous comment that discovery of a "frame" would be expected to prompt, there is no significant inconsistency between petitioners' trial testimony [426 U.S. 610, 632] and their adherence to counsel's advice not to take the stand at the preliminary hearing; moreover, the decision not to divulge their defense prior to trial is probably attributable to counsel rather than to petitioners. 10 Nevertheless, unless and until this Court overrules Raffel v. United States, 271 U.S. 494 , 11 I think a state court is [426 U.S. 610, 633] free to regard the defendant's decision to take the stand as a waiver of his objection to the use of his failure to testify at an earlier proceeding or his failure to offer his version of the events prior to trial.
In my judgment portions of the prosecutor's argument to the jury overstepped permissible bounds. In each trial, he commented upon the defendant's silence not only as inconsistent with his testimony that he had been "framed," [426 U.S. 610, 634] but also as inconsistent with the defendant's innocence. 12 Comment on the lack of credibility of the defendant is plainly proper; it is not proper, however, for the prosecutor [426 U.S. 610, 635] to ask the jury to draw a direct inference of guilt from silence - to argue, in effect, that silence is inconsistent with innocence. But since the two inferences - perjury [426 U.S. 610, 636] and guilt - are inextricably intertwined because they have a common source, it would be unrealistic to permit comment on the former but to find reversible error in the slightest reference to the latter. In the context of the entire argument and the entire trial, I am not persuaded that the rather sophisticated distinction between permissible comment on credibility and impermissible comment on an inference of guilt justifies a reversal of these state convictions. 13
Accordingly, although I have some doubt concerning the propriety of the cross-examination about the preliminary hearing and consider a portion of the closing argument improper, I would affirm these convictions.
[ Footnote 1 ] As the Court acknowledges, 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." Ante, at 619 and this page, n. 11.
[ Footnote 2 ] At Wood's trial, the arresting officer described the warning he gave petitioners:
[ Footnote 3 ] 3A J. Wigmore, Evidence 1042 (Chadbourn rev. 1970).
[ Footnote 4 ] Petitioner Doyle gave the following testimony on direct and cross-examination at his trial:
[ Footnote 5 ] See Massiah v. United States, 377 U.S. 201, 206 -207; 8 J. Wigmore, Evidence 2270, pp. 416-417 (McNaughton rev. 1961); cf. Alderman v. United States, 394 U.S. 165, 174 . Cross-examination and comment upon a witness' prior silence does not raise any inference prejudicial to the defendant, and indeed, does not even raise any inference that the defendant remained silent.
[ Footnote 6 ] "In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S. 1, 8 (1964); Comment, 31 U. Chi. L. Rev. 556 (1964); Developments in the Law - Confessions, 79 Harv. L. Rev. 935, 1041-1044 (1966). See also Bram v. United States, 168 U.S. 532, 562 (1897)." 384 U.S., at 468 n. 37.
[ Footnote 7 ] See n. 4, supra.
[ Footnote 8 ] As the Court recently recognized in a most carefully considered opinion, an adversary system can maintain neither the reality nor the appearance of efficacy without the assurance that its judgments rest upon a complete illumination of a case rather than upon "a partial or speculative presentation of the facts." United States v. Nixon, 418 U.S. 683, 709 . The necessity of insuring a complete presentation of all relevant evidence has led to the rule that a criminal defendant who voluntarily forgoes his privilege not to testify, and presents exculpatory or mitigating evidence, thereby subjects himself to relevant cross-examination without the right to reclaim Fifth Amendment protection on a selective basis. Fitzpatrick v. United States, 178 U.S. 304, 315 .
In each of these cases involving impeachment cross-examination, the need to insure the integrity of the trial by the "traditional truth-testing devices of the adversary process," Harris v. New York, supra, at 225, was deemed to outweigh the policies underlying the relevant exclusionary rules.
[ Footnote 9 ] Petitioner Doyle was cross-examined as follows at his trial:
[ Footnote 10 ] Under Ohio law, the preliminary hearing determines only whether the defendant should be held for trial. The prosecution need establish, at most, that a crime has been committed and that there is "probable and reasonable cause" to hold the defendant for trial, and the court need only find "substantial credible evidence" of the charge against the defendant. Ohio Rev. Code Ann. 2937.12, 2937.13 (Supp. 1973). Indeed, if a defendant has been indicted, no hearing need be held. State v. Morris, 42 Ohio St. 2d 307, 326, 329 N. E. 2d 85, 97 (1975). Defense counsel thus will have no incentive to divulge the defendant's case at the preliminary hearing if the prosecution has presented substantial evidence of guilt. Since that was the case here, no significant impeaching inference may be drawn from petitioners' silence at that proceeding.
Petitioners' failure to refer to the "frame" at any time between arrest and trial is somewhat more probative; for if the "frame" story were true, one would have expected counsel to try to persuade the prosecution to dismiss the charges in advance of trial.
[ Footnote 11 ] Raffel was the last decision of this Court to address the constitutionality of admitting evidence of a defendant's prior silence [426 U.S. 610, 633] to impeach his testimony upon direct examination. Raffel had been charged with conspiracy to violate the National Prohibition Act. An agent testified at his first trial that he had admitted ownership of a drinking place; Raffel did not take the stand. The trial ended in a hung jury, and upon retrial, the agent testified as before. Raffel elected to testify and denied making the statement, but he was cross-examined on his failure to testify in the first trial. This Court held that the evidence was admissible because Raffel had completely waived the privilege against self-incrimination by deciding to testify. 271 U.S., at 499 .
Subsequent cases, decided in the exercise of this Court's supervisory powers, have diminished the force of Raffel in the federal courts. United States v. Hale, 422 U.S. 171 ; Stewart v. United States, 366 U.S. 1 ; Grunewald v. United States, 353 U.S. 391 . All three of these cases held that the defendant's prior silence or prior claim of the privilege was inadmissible for purposes of impeachment; all three distinguished Raffel on the ground that the Court there assumed that the defendant's prior silence was significantly inconsistent with his testimony on direct examination. Hale, supra, at 175-176; Stewart, supra, at 5-7; Grunewald, supra, at 418-424. Two of the three cases relied upon the need to protect the defendant's exercise of the privilege against self-incrimination from unwarranted inferences of guilt, a rationale that is not easily reconciled with the reasoning in Raffel that the decision to testify constitutes a complete waiver of the protection afforded by the privilege. Compare Hale, supra, at 180 and n. 7, and Grunewald, supra, at 423-424, with Raffel, 271 U.S., at 499 .
[ Footnote 12 ] At Doyle's trial, the prosecutor made the following arguments to the jury:
[ Footnote 13 ] Petitioner Doyle also argues that he was erroneously cross-examined at his trial on his failure to consent to a search of the car he was driving at the time of the arrest. Petitioner Wood appears to raise the similar claim that testimony of other witnesses that he failed to consent to a search of the car was erroneously admitted at his trial. The parties have not argued these issues separately from the questions whether prior silence in various circumstances may be admitted to impeach a defendant or a defense witness. It is apparent, however, that these questions implicate Fourth Amendment issues that merit independent examination. Accordingly, like the Court, I do not address them. [426 U.S. 610, 637]