JUSTICE STEVENS delivered the opinion of the Court.
Respondent entered a plea of not guilty by reason of insanity to a charge of sexual battery. At his trial in the Circuit Court for Sarasota County, Florida, the prosecutor argued that respondent's silence after receiving Miranda warnings was evidence of his sanity. The question presented is whether such use of a defendant's silence violates the Due Process Clause of the Fourteenth Amendment as construed in Doyle v. Ohio, 426 U.S. 610 (1976).
The battery occurred in woods near a beach in the vicinity of Sarasota, Florida. After respondent released his victim, she drove directly to the police station to report the incident. Based on her description, Officer Pilifant identified respondent on the beach and placed him under arrest about two hours after the assault occurred. After handcuffing him, the officer gave respondent the warnings required by our decision in Miranda v. Arizona, 384 U.S. 436, 467-473 (1966). Specifically, Officer Pilifant stated:
Respondent replied by stating that he understood his rights and that he wanted to talk to an attorney before making any statement. The Miranda warnings were repeated by Officer Pilifant while driving to the police station and reiterated by Detective Jolley after they arrived at the station. Each time that respondent was asked "if he wished to give up the right to remain silent," he declined, stating that he wanted to talk to an attorney. App. 77.
Under Florida law, when a defendant pleads not guilty by reason of insanity and when his evidence is sufficient to raise a reasonable doubt about his sanity, the State has the burden of proving sanity beyond a reasonable doubt.
In his closing argument, over defense counsel's objection, the prosecutor reviewed the testimony of Officer Pilifant and Detective Jolley and suggested that respondent's repeated refusals to answer questions without first consulting an attorney demonstrated a degree of comprehension that was inconsistent with his claim of insanity.
The Florida Supreme Court granted respondent's petition for certiorari and summarily remanded the case to the Court of Appeal for reconsideration in light of Clark v. State, 363 So.2d 331 (1978), a case in which it had held that improper comment on a defendant's silence was constitutional error reviewable on appeal if an adequate contemporaneous objection was made either at the time the evidence was introduced or at the time of the prosecutor's comment. Greenfield v. State, 364 So.2d 885 (1978). On reconsideration, the Court of Appeal adhered to its earlier decision.
Having exhausted his state remedies, respondent filed a petition for a writ of habeas corpus in the Federal District Court. The petition was referred to a Magistrate. The State argued that the silence issue was barred because respondent's counsel had failed to make an adequate objection. The Magistrate concluded that federal review of the claim was not foreclosed because counsel had objected to the prosecutor's closing argument and because the Florida Court of Appeal had rejected the claim on its merits. The
The United States Court of Appeals for the Eleventh Circuit reversed. 741 F.2d 329 (1984). Disagreeing with two other Federal Courts of Appeals
In Doyle, the defendants had taken the witness stand and offered an exculpatory explanation for their participation in what the State's evidence had portrayed as a routine marihuana transaction. On cross-examination the prosecutor impeached their testimony by asking them why they had not explained their conduct at the time of their arrest. The Court held that such cross-examination was fundamentally unfair
The source of the unfairness was the implicit assurance contained in the Miranda warnings "that silence will carry no penalty."
Since Fletcher, moreover, we have continued to reiterate our view that Doyle rests on "the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." South Dakota v. Neville, 459 U.S. 553, 565 (1983).
We find no warrant for the claimed distinction in the reasoning of Doyle and of subsequent cases. 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.
The Florida Attorney General further contends that a suspect's comprehension of Miranda warnings, as evidenced by his silence, is far more probative of sanity than of commission of the underlying offense. He therefore argues that the reliance on the "insolubly ambiguous" character of the post-Miranda warnings silence in the Doyle opinion, 426 U. S., at 617, is inappropriate in the context of an insanity defense. We need not evaluate the probative value of respondent's silence
Finally, the Florida Attorney General argues that it is vitally important to be able to present evidence of a defendant's sanity at the time of the offense and shortly thereafter.
In Doyle, we held that Miranda warnings contain an implied promise, rooted in the Constitution, that "silence will carry no penalty." 426 U. S., at 618. Our conclusion that it was fundamentally unfair for the Ohio prosecutor to breach that promise by using the defendants' postarrest, post-Miranda warnings silence to impeach their trial testimony requires us also to conclude that it was fundamentally unfair for the Florida prosecutor to breach the officers' promise to respondent by using his postarrest, post-Miranda warnings silence as evidence of his sanity.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
I agree with the Court that our opinion in Doyle v. Ohio, 426 U.S. 610 (1976), shields from comment by a prosecutor a defendant's silence after receiving Miranda warnings, even though the comment be addressed to the defendant's claim of insanity. I write separately, however, to point out that it does not follow from this that the Court of Appeals, which took the same position, reached the correct result. That court expanded Doyle to cover not merely silence, but requests for counsel, and ignored the fact that the evidence upon which the prosecutor commented had been admitted without objection. Analyzed in these terms, the Court of Appeals' conclusion that the "error" was not harmless is suspect: The portion of the prosecutor's closing statement that the Court of Appeals held amounted to constitutional error was in large part unobjectionable from a constitutional point of view, and the officer's testimony relating to silence was already before the jury, without objection. I concur in the result reached today because one of the prosecutor's comments, however brief, was an improper comment on respondent's silence, and the State does not argue here that any error was harmless beyond a reasonable doubt.
In Doyle, the Court said:
Doyle addressed the propriety of cross-examining defendants about their silence following Miranda warnings. Here the Court of Appeals assumed, without analysis, that respondent's conduct and statements following the warnings, such as his requests for a lawyer, should be treated the same as silence. I disagree. Doyle deemed silence "insolubly ambiguous" — the defendant may be indicating he has nothing to say in his defense, or he may be relying on the assurance that he has a right to remain silent. Similarly, a request for a lawyer has essentially no probative value where the question is one of guilt or innocence: No sensible person would draw an inference of guilt from a defendant's request for a lawyer after he had been told he had a right to consult one; it is simply not true that only a guilty person would want to have a lawyer present when being questioned by the police.
But a request for a lawyer may be highly relevant where the plea is based on insanity. There is no "insoluble ambiguity" in the request; it is a perfectly straightforward statement tending to show that an individual is able to understand his rights and is not incoherent or obviously confused or unbalanced. While plainly not conclusive proof of sanity, the request for a lawyer, like other coherent and responsive statements made near the time of the crime, is certainly relevant.
Officer Pilifant's description of respondent's right to counsel was framed differently:
I do not read the foregoing statement as containing any promise, express or implied, that the words used in responding to notice of the right to a lawyer will not be used by the State to rebut a claim of insanity. In the absence of such a promise, respondent surely was not "tricked" into asking for a lawyer, and the prosecutor's reference to respondent's request was in no way "fundamentally unfair."
Nor do I believe that relevant comment about the invocation of the right to an attorney, made in an effort to defeat a claim of insanity, works the sort of "penalty" condemned in Doyle. Inviting the jury to draw an inference of guilt, which separates a defendant from the mass of society, is one thing; inviting it to draw an inference of sanity or rationality, which merely places a defendant together with the mass of society, is quite another. A suspect's right to an attorney during
Turning to the prosecutor's closing argument in this case, I believe that far less of what the Court of Appeals described as the "challenged portion" violated Doyle than did the Court of Appeals. That "challenged portion" consists of the following statement:
The first part of the statement describes, in the words of the arresting officer, prearrest conduct of the defendant. Doyle does not bar this sort of testimony. Fletcher v. Weir, 455 U.S. 603 (1982). When the defendant was read his Miranda rights, he did not remain silent; he said:
Thus Doyle does not cover this portion of the closing argument either. While a defendant's invocation of his right to an attorney, or his statement that he understands (and appreciates being informed about) his rights, would be largely irrelevant in the case of most defenses, it is surely relevant in the context of a claim of insanity.
The only portion of the summation that can, in my opinion, be said to violate Doyle is the following:
This is a comment on respondent's silence, and as such it constitutes a breach of the Miranda warning's "implied assurance" that his silence would not be used against him.
The Court of Appeals' determination that the prosecutor's error was not harmless was based on its apparent conclusion that all of the "challenged portion" of the prosecutor's statement
But as noted above, actually a much smaller portion of this statement was constitutionally objectionable. And in evaluating whether or not this minute extract from the prosecutor's closing argument can be deemed harmless, I think an important factor apparently not considered by the Court of Appeals was that the testimony on which the summation was based had already come in without objection. It was there for the jury to consider on its own regardless of whether the prosecutor ever mentioned it. This fact, together with the brevity of the prosecutor's improper comment, at least suggests that the error was harmless beyond a reasonable doubt. See Cupp v. Naughten, 414 U.S. 141 (1973); Donnelly v. DeChristoforo, 416 U.S. 637 (1974). As the Court points out, however, ante, at 295, n. 13, the Attorney General has not contested the Court of Appeals' conclusion that any error was not harmless. Accordingly, I concur in the result.
"He goes to the car and the officer reads him his Miranda rights. Does he say he doesn't understand them? Does he say `what's going on?' No. He says `I understand my rights. I do not want to speak to you. I want to speak to an attorney.' Again an occasion of a person who knows what's going on around his surroundings, and knows the consequences of his act. Even down — as going down [to] the car as you recollect Officer Pil[i]fant said he explained what Miranda rights meant and the guy said — and Mr. Greenfield said `I appreciate that, thanks a lot for telling me that.' And here we are to believe that this person didn't know what he was doing at the time of the act, and then even down at the station, according to Detective Jolley — He's down there. He says, `Have you been read your Miranda rights?' `Yes, I have.' `Do you want to talk?' `No.' `Do you want to talk to an attorney?' `Yes.' And after he talked to the attorney again he will not speak. Again another physical overt indication by the defendant . . . .
"So here again we must take this in consideration as to his guilt or innocence, in regards to sanity or insanity." App. 96-98.
" `[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.' " Doyle v. Ohio, 426 U. S., at 618-619 (footnotes omitted).
In United States v. Hale, 422 U.S. 171 (1975), the Court had held that the use of postarrest, post-Miranda warnings silence was impermissible in federal prosecutions. The Court based its holding on its supervisory power in federal proceedings and left open the constitutional question. JUSTICE WHITE's concurrence argued that the use violated due process, and it was that view the Court adopted in Doyle.
"Post-arrest, post-Miranda silence is deemed to have dubious probative value by reason of the many and ambiguous explanations for such silence. 422 U. S. at 180 . . . . Contrary to what Greenfield intimates, these ambiguities attendant to post-Miranda silence do not suddenly disappear when an arrestee's mental condition is brought into issue. The same evidentiary problems addressed by the Supreme Court in Hale are present in the case before us. For example, one could reasonably conclude that custodial interrogation might intimidate a mentally unstable person to silence. Likewise an emotionally disturbed person could be reasonably thought to rely on the assurances given during a Miranda warning and thereafter choose to remain silent. In sum, just what induces post-arrest, post-Miranda silence remains as much a mystery today as it did at the time of the Hale decision. Silence in the face of accusation is an enigma and should not be determinative of one's mental condition just as it is not determinative of one's guilt. Accordingly, the state should not be permitted to confirm Burwick's mental state with evidence of his post-Miranda silence."