Post-Miranda Warnings Silence

Holding in Doyle v. Ohio

• We hold that the use for impeachment purposes of [the defendants’] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

Doyle v. Ohio, 426 U.S. 610, 619 (1976)

Interpretation of the holding in Doyle v. Ohio

• In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the U.S. Supreme Court held that a state violates a criminal defendant's due process rights when it uses the defendant's silence after a Miranda warning to impeach him at trial.

Lynch v. State, 632 N.E.2d 341, 342 (Ind. 1994)

See Trice v. State, 766 N.E.2d 1180, 1182-83 (Ind. 2002)(citing Doyle v. Ohio, 426 U.S. 610, 619 (1976))(“In Doyle, the Court held that under the Fourteenth Amendment a prosecutor may not use the silence of a defendant who's been arrested and Mirandized to impeach the defendant.”)

• For more information about using a defendant’s silence to impeach the defendant, please review Impeachment.

Using the defendant’s silence as affirmative proof in the prosecution’s case-in-chief

• Doyle is not limited solely to “the use for impeachment purposes” of a defendant's silence. Rather, it also applies to the use of a defendant's silence as affirmative proof in the State's case in chief.

Kubsch v. State, 784 N.E.2d 905, 914 (Ind. 2003)(citing Wainwright v. Greenfield, 474 U.S. 284, 292 (1986))

See Nicks v. State, 598 N.E.2d 520, 524 (Ind. 1992)(“A Doyle violation occurs when the prosecution succeeds in making affirmative use of the defendant's exercise of his rights in obtaining his conviction.”)

Cf. Francis v. State, 758 N.E.2d 528, 531 (Ind. 2001)(quoting Wisehart v. State, 693 N.E.2d 23, 64 (Ind.1998), reh’g denied, cert. denied, 526 U.S. 1040 (1999))(alteration in the original)(“Not limiting Doyle solely to ‘the use for impeachment purposes,’ this Court has held that ‘[d]uring trial, the State may not comment upon a defendant's post-arrest, post-Miranda warning silence because that silence may be nothing more than an exercise of the Fifth Amendment right.’”)

• Indeed, the Supreme Court has noted that where . . . a defendant's silence is used not as impeachment but as affirmative proof in the State's case in chief, “The constitutional violation might thus be especially egregious because, unlike Doyle, there was no risk that exclusion of the evidence would merely provide a shield for perjury.”

Francis v. State, 758 N.E.2d 528, 531-32 (Ind. 2001)(quoting Wainwright v. Greenfield, 474 U.S. 284, 292 n. 8 (1986))

Using the defendant’s silence as evidence of sanity

• The rule in Doyle also applies to the use of a defendant's post-arrest, post-Miranda warnings silence as evidence of sanity.

Mendenhall v. State, 963 N.E.2d 553, 565 (Ind. Ct. App. 2012), trans. denied(citing Robinette v. State, 741 N.E.2d 1162, 1164 (Ind. 2001))

• Building on Doyle, [Wainwright v. Greenfield] held that a criminal defendant's post-Miranda warning request to talk to an attorney before making any statement could not be used at trial as evidence of the defendant's sanity.

Lynch v. State, 632 N.E.2d 341, 342 (Ind. 1994)

• The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant's plea of insanity. In both situations, the State gives warnings to protect constitutional rights and implicitly promises that any exercise of those rights will not be penalized. In both situations, the State then seeks to make use of the defendant's exercise of those rights in obtaining his conviction. The implicit promise, the breach, and the consequent penalty are identical in both situations.

Wainwright v. Greenfield, 474 U.S. 284, 292 (1986)

Lynch v. State, 632 N.E.2d 341, 342 (Ind. 1994)(quoting Wainwright v. Greenfield, 474 U.S. 284, 292 (1986))

• It is now well established . . . that a post-Miranda request for counsel may not be used to show sanity.

Lynch v. State, 632 N.E.2d 341, 342 (Ind. 1994)

Statements that a defendant makes in exercising the defendant’s Miranda rights

• Doyle protections extend to the statements a criminal defendant makes in exercising his Miranda rights.

Wilson v. State, 688 N.E].2d 1293, 1297 (Ind. Ct. App. 1997)

• With respect to post-Miranda warnings “silence,” we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.

Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13 (1986)

Mendenhall v. State, 963 N.E.2d 553, 565 (Ind. Ct. App. 2012), trans. denied(citing Kubsch v. State, 784 N.E.2d 905, 914 (Ind. 2003))(“‘Silence’ does not mean only muteness; it includes a statement of a desire to remain silent as well as a desire to remain silent until an attorney has been consulted.”)

• [The State] attempts to distinguish Greenfield by suggesting that in the instant case, the defendant's silence was not being used against him, but rather, that what the defendant said was being used to show his sanity at or near the time of the offense. This argument is untenable in light of the Supreme Court's observation that post-Miranda silence “does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.”

Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987)(quoting Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13 (1986))

See Lynch v. State, 632 N.E.2d 341, 343 (Ind. 1994)(quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987))(“We also specifically rejected the State's argument that Wainwright effected a change in prevailing law only as pertains to ‘silence’ and not to ‘what the defendant said.’”)

• In the present case, the State was not attempting to impeach [the defendant] based upon his post-Miranda silence. Instead, it was attempting to impeach him based upon his post-Miranda decision to speak for the purpose of exculpating himself. Doyle does not protect such statements. Accordingly, we hold that the State's use of [the defendant’s] statement that he knew nothing about the stolen coins, for the purpose of impeaching his earlier statements that he had obtained the coins legitimately, did not violate [the defendant’s] due process rights.

Wilson v. State, 688 N.E.2d 1293, 1298 (Ind. Ct. App. 1997)

Requests for explanations of silence

• An inquiry which seeks from the accused an explanation of his silence is an improper comment upon an accused's post-arrest silence.

Phelps v. State, 360 N.E.2d 191, 194 (Ind. 1977), cert. denied, 434 U.S. 844 (1977)

• The inference is impermissible because, “[E]very post-arrest silence is insolubly ambiguous.”

Phelps v. State, 360 N.E.2d 191, 194 (Ind. 1977), cert. denied, 434 U.S. 844 (1977)(quoting Doyle v. Ohio, 426 U.S. 610, 617 (1976))

Situations to which the holding in Doyle v. Ohio does not apply

• A jury's knowledge that a defendant initially remained silent is not a problem when that knowledge is not used to subvert the defense in Doyle fashion.

Mendenhall v. State, 963 N.E.2d 553, 565 (Ind. Ct. App. 2012), trans. denied(citing Splunge v. Parke, 160 F.3d 369, 372 (7th Cir. 1998), cert. denied, 528 U.S. 833 (1999))

• [W]hile Doyle bars the use of a defendant's silence for impeachment, “Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.”

Trice v. State, 766 N.E.2d 1180, 1184 (Ind. 2002)(quoting Anderson v. Charles, 447 U.S. 404, 408 (1980), reh’g denied)

Opening the door

• Although evidence of a defendant's post-Miranda silence is generally not admissible, the defendant may open the door to its admission.

Morgan v. State, 755 N.E.2d 1070, 1075 (Ind. 2001)

Vitek v. State, 750 N.E.2d 346, 350 (Ind. 2001), reh’g denied

• The Doyle Court acknowledged this in its decision, stating “[I]t 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.”

Morgan v. State, 755 N.E.2d 1070, 1075 (Ind. 2001)(quoting Doyle v. Ohio, 426 U.S. 610, 619 n. 11 (1976))

Vitek v. State, 750 N.E.2d 346, 350 (Ind. 2001), reh’g denied(quoting Doyle v. Ohio, 426 U.S. 610, 619 n. 11 (1976))

• For more information about how the defendant can “open the door” to the admission of evidence, please review Opening the Door.