During cross-examination, an attorney may challenge the credibility of the opponent’s witness via impeachment. By doing so, the attorney is signaling that the judge and/or the jury should dismiss what the witness says because the testimony is not credible. Attorneys may impeach witnesses through several means, such as showing that the witness made a prior inconsistent statement, showing that the witness is biased or has a personal interest in the matter, showing that the witness has been convicted of a crime, and/or calling a witness who testifies that the witness does not have a character for truthfulness.
A prosecutor may also impeach a defendant who chooses to take the stand with the defendant’s pre-arrest silence. The Supreme Court so held almost 40 years ago in Jenkins v. Anderson, determining that cross-examining a defendant with his pre-arrest silence for impeachment purposes is constitutional. In so doing, the Court recognized that its decision was not binding on the states, leaving it up to each jurisdiction to decide whether to permit use of pre-arrest silence for impeachment purposes. To the extent that states have not yet weighed in on this issue, they should reject this impeachment method because pre-arrest silence is as ambiguous as post-arrest, post-Miranda silence and also impermissibly burdens the right to remain silent.
The defendant in Jenkins stabbed and killed a man. He was not apprehended until he turned himself in two weeks later. At his trial, he testified that the killing was in self-defense. The prosecution cross-examined Jenkins over his failure to come forward with this explanation in the two weeks between the stabbing and his surrender, and was found guilty.
In holding that a defendant can be impeached with his pre-arrest silence, the Court distinguished its prior decision in Doyle v. Ohio. In Doyle, the Court held that impeaching a defendant with her post-arrest, post-Miranda silence was a violation of Miranda v. Arizona. The Court in Doyle reasoned that post-Miranda silence is “insolubly ambiguous” because silence in the wake of Miranda warnings may simply be the arrestee’s invocation of those rights. The Court further found that Miranda warnings carry an implicit assurance that an arrestee’s decision to remain silent will not be used against her. In Jenkins, however, the Court reasoned that no governmental assurance had induced the defendant to remain silent before his arrest, and that, because the fundamental unfairness that was present in Doyle did not exist in Jenkins, impeachment by use of the defendant’s pre-arrest silence did not violate the Fifth Amendment as applied to the states through the Fourteenth Amendment.
The dissent in Jenkins perceived three defects in the majority’s decision. First, pre-arrest silence is unlikely to be probative of a defendant’s trial testimony. Second, drawing an adverse inference from the failure to volunteer incriminating information impermissibly infringes the privilege against self-incrimination. Third, use of pre-arrest silence impermissibly burdens the decision to testify in one’s own defense.
States that have not yet resolved this issue should hold that impeachment by means of pre-arrest silence violates the state versions of the Fifth Amendment. As the dissent suggested in Jenkins, pre-arrest silence is far too ambiguous to warrant its use for this purpose. Indeed, people generally know through popular culture that they have the Fifth Amendment right to remain silent, and may reasonably believe that right attaches during pre-arrest conversations with police. In addition, the better view is that use of pre-arrest silence for impeachment purposes impermissibly burdens the privilege against self-incrimination, as the only way to avoid it is to come forward with information about one’s own activities.