Jenkins v. Anderson, 78-6809

• Decision Date: 10 June 1980
• Docket Number: No. 78-6809,78-6809
• Parties: Dennis Seay JENKINS, Petitioner, v. Charles ANDERSON, Warden
• Court: U.S. Supreme Court

447 U.S. 231

100 S.Ct. 2124

65 L.Ed.2d 86

Dennis Seay JENKINS, Petitioner,

v Charles ANDERSON, Warden.

No. 78-6809.

Argued Jan. 8, 1980.

Decided June 10, 1980.

Syllabus ^*

At his trial in a Michigan state court for first-degree murder, petitioner testified that he acted in self-defense. On cross-examination, the prosecutor questioned petitioner about the fact that he was not apprehended until he surrendered to governmental authorities about two weeks after the killing, and in closing argument again referred to petitioner's prearrest silence, thereby attempting to impeach petitioner's credibility by suggesting that he would have spoken out if he had killed in self-defense. Petitioner was convicted of manslaughter, and after his conviction was affirmed in the state courts he sought habeas corpus relief in Federal District Court, contending that his constitutional rights were violated when the prosecutor questioned him concerning prearrest silence. The District Court denied relief, and the Court of Appeals affirmed.

Held :

1. The Fifth Amendment, as applied to the States through the Fourteenth Amendment, is not violated by the use of prearrest silence to impeach a criminal defendant's credibility. While the Fifth Amendment prevents the prosecution from commenting on the silence of a defendant who asserts the right to remain silent during his criminal trial, it is not violated when a defendant who testifies in his own defense is impeached with his prior silence. Impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial. Cf.Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589. Pp. 235-238.

2. Nor does the use of prearrest silence to impeach a defendant's credibility deny him the fundamental fairness guaranteed by the Fourteenth Amendment. 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. And 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. In this case, in which no governmental action induced petitioner to remain silent before arrest, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, is inapplicable. Pp. 238-240.

6 Cir., 599 F.2d 1055, affirmed.

3. A state court is not required to allow impeachment through the use of prearrest silence. Each jurisdiction is free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial. Pp. 240-241.

Carl Ziemba, Detroit, Mich., for petitioner.

Robert A. Derengoski, Lansing, Mich., for respondent.

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, 100 S.Ct. 45, 62 L.Ed.2d 30 (1979). We now affirm.¹

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 the 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 for commenting on the silence of a defendant who asserts the right. Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106 (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, 46 S.Ct. 566, 70 L.Ed. 1054 (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., 46 S.Ct., at 567, 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, 46 S.Ct., at 568. Thus, the Raffel Court concluded that the defendant was "subject to cross-examina- tion impeaching his credibility just like any other witness." Grunewald v. United States, 353 U.S. 391, 420, 77 S.Ct. 963, 982, 1 L.Ed.2d 931 (1957).²

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, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973). See Corbitt v. New Jersey, 439 U.S. 212, 218, and n. 8, 99 S.Ct. 492, 497, and n. 8, 58 L.Ed.2d 466 (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, 412 U.S., at 32, 93 S.Ct., at 1985, quoting Crampton v. Ohio, decided with McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971).³ The Raffel Court ex- plicitly 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] testified . . . 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, 46 S.Ct., at 568.⁴

This Court similarly defined the scope of the Fifth Amendment protection inHarris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). There the Court held that a statement taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), may be used to impeach a...