The question before us is whether a prosecutor's question at trial concerning a criminal defendant's postarrest silence requires reversal of the defendant's conviction.
In 1980, Neil Gorsuch was kidnaped, robbed, and murdered after leaving a bar in Jacksonville, Illinois. Three men were charged with the crimes: Randy Williams, Clarence Armstrong, and the respondent, Charles Miller. Williams confessed, and later entered into a plea agreement under which most of the charges against him were dropped in return for his testimony at the separate trials of Armstrong and Miller.
At Miller's trial, Williams testified that he, his brother, and Armstrong had met Gorsuch in a tavern on the evening of February 8. Armstrong offered the victim a ride back to his hotel, and the four men left together at about 1:30 a.m. After Williams' brother was dropped off, Armstrong began beating Gorsuch in the back seat of the car. According to Williams' testimony, the group stopped briefly at Williams' parents' home to pick up a shotgun, and the men then drove to the trailer home where Miller was staying. Williams testified that Miller joined the group, and that they then traveled to a bridge on an isolated road. Williams stated that once there each of the three men shot Gorsuch in the head with the shotgun.
Respondent Miller took the stand on his own behalf and told a different story. On direct examination he testified that he had taken no part in the crime, but that Armstrong and Williams had come to the trailer home after the murder was committed seeking Miller's advice. Miller testified that Armstrong confessed that he and Williams had beaten and robbed Gorsuch, and that they had killed him to avoid being identified as the perpetrators.
Defense counsel immediately objected. Out of the hearing of the jury, Miller's lawyer requested a mistrial on the ground that the prosecutor's question violated Miller's right to remain silent after arrest. The trial judge denied the motion, but immediately sustained the objection and instructed the jury to "ignore [the] question, for the time being." Id., at 32. The prosecutor did not pursue the issue further, nor did he mention it during his closing argument. At the conclusion of the presentation of evidence, defense counsel did not renew his objection or request an instruction concerning the prosecutor's question. Moreover, the judge specifically instructed the jury to "disregard questions . . . to which objections were sustained." Id., at 47. Miller was convicted of murder, aggravated kidnaping, and robbery, and sentenced to 80 years in prison.
On appeal the State argued that if the prosecutor's question about Miller's postarrest silence was prohibited by this Court's decision in Doyle v. Ohio, 426 U.S. 610 (1976), the error was harmless under the standards of Chapman v. California, 386 U.S. 18 (1967).
Miller then filed a petition for a writ of habeas corpus in the Federal District Court for the Central District of Illinois. The District Court denied the petition, finding "no possibility that the prosecutor's questioning on post-arrest silence could have contributed to the conviction." App. to Pet. for Cert. C-3. A divided panel of the Court of Appeals for the Seventh Circuit reversed the District Court's decision, United States ex rel. Miller v. Greer, 772 F.2d 293 (1985), as did the full court on reargument en banc. United States ex rel. Miller v. Greer, 789 F.2d 438 (1986). The en banc court found that because Miller had received Miranda
We granted certiorari to review the Court of Appeals' determination that the prosecutor's question about the criminal defendant's postarrest silence requires reversal of the conviction in this case. 479 U.S. 983 (1986).
The starting point of our analysis is Doyle v. Ohio, 426 U.S. 610 (1976). The petitioners in Doyle were arrested for selling marijuana. They were given Miranda warnings and made no postarrest statements about their involvement in the crime. They contended at trial that they had been
This Court has applied the holding of Doyle in a number of subsequent cases. These later holdings confirm 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.' " Wainwright v. Greenfield, 474 U.S. 284, 291 (1986) (quoting South Dakota v. Neville, 459 U.S. 553, 565 (1983)). Thus, "absen[t] the sort of affirmative assurances embodied in the Miranda warnings," the Constitution does not prohibit the use of a defendant's postarrest silence to impeach him at trial. Fletcher v. Weir, 455 U.S. 603, 607 (1982). See Jenkins v. Anderson, 447 U.S. 231, 240 (1980) ("[N]o governmental action induced [the defendant] to remain silent before arrest") (emphasis added); Anderson v. Charles, 447 U.S. 404, 408 (1980) (cross-examination respecting inconsistent postarrest statements "makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent").
There is no question that Miller received the "implicit assurance" of Miranda warnings in this case. Thus, this prerequisite of a Doyle violation was met. But the holding of Doyle is that the Due Process Clause bars "the use for impeachment purposes" of a defendant's postarrest silence. 426 U. S., at 619 (emphasis added). The Court noted that " `it does not comport with due process to permit the prosecution during trial to call attention to [the defendant's] silence.' "
In contrast to these cases, the trial court in this case did not permit the inquiry that Doyle forbids. Instead, the court explicitly sustained an objection to the only question that touched upon Miller's postarrest silence. No further questioning or argument with respect to Miller's silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained.
Although the prosecutor's question did not constitute a Doyle violation, the fact remains that the prosecutor attempted to violate the rule of Doyle by asking an improper question in the presence of the jury. This Court has recognized that prosecutorial misconduct may "so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial misconduct must be " `of sufficient significance to result in the denial of the defendant's right to a fair trial.' " United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)).
The Illinois Supreme Court, applying the analysis of Chapman v. California, 386 U.S. 18 (1967), found that the prosecutor's question was harmless beyond a reasonable doubt. 96 Ill. 2d, at 396, 450 N. E. 2d, at 327. We thus are convinced that it would find no due process violation under the facts of this case.
We reverse the judgment of the Court of Appeals for the Seventh Circuit and remand for proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring in the judgment.
Having dissented in Doyle v. Ohio, 426 U.S. 610, 620-635 (1976), I can readily understand why the Court might want to overrule that case. But if there is to be a rule that prohibits a prosecutor's use of a defendant's post-Miranda silence, it should be a clearly defined rule. Whether the trial court sustains an objection to an impermissible question, or whether the prosecutor is allowed to refer to the defendant's silence in his or her closing arguments, are questions that are relevant to the harmless-error inquiry, or to deciding whether the error made the trial fundamentally unfair. But they play no role in deciding whether a prosecutor violated the implicit promise of Miranda — as understood in Doyle — that the defendant's silence will not be used against him.
I, therefore, agree with the 10 Illinois judges and 12 federal judges who have concluded that the rule of the Doyle case was violated when the prosecutor called the jury's attention to respondent's silence. Moreover, for the reasons stated by the Court of Appeals, I think the violation was serious enough to support that court's conclusion that the error was not harmless beyond a reasonable doubt. United States ex rel. Miller v. Greer, 789 F.2d 438, 445-447 (CA7 1986) (en banc). Were this case here on direct appeal, therefore, I would vote to reverse the conviction.
In my view, Doyle violations which cannot be deemed harmless beyond a reasonable doubt typically fall within the third of these categories. On direct review, a conviction should be reversed if a defendant can demonstrate that a Doyle error occurred at trial, and the State cannot demonstrate that it is harmless beyond a reasonable doubt. But, in typical collateral attacks, such as today's, Doyle errors are not so fundamentally unfair that convictions must be reversed whenever the State cannot bear the heavy burden of proving that
In sum, although I agree with the Court's judgment, and the standard that it applies here, I would apply this standard only to Doyle violations being considered on collateral review. On direct appeal, a Doyle error should give rise to reversal of the conviction unless the State can prove that the error was harmless beyond a reasonable doubt.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
Today the Court holds that a prosecutor may comment on a defendant's postarrest silence in an attempt to impeach his credibility without thereby violating the rule of Doyle v. Ohio, 426 U.S. 610 (1976). The Court arrives at this surprising conclusion only by confusing the question whether a Doyle violation occurred with the question whether that violation was harmless beyond a reasonable doubt. The holding is remarkable not only because it radically departs from the settled practice of the lower courts, but also because it is founded on a point conceded below and not raised here.
Until today, the common understanding of "our opinion in Doyle v. Ohio . . . [was that it] shields from comment by a prosecutor a defendant's silence after receiving Miranda warnings." Wainwright v. Greenfield, 474 U.S. 284, 296 (1986) (REHNQUIST, J., concurring in result) (emphasis
To support its decision that no Doyle violation occurred in this case, the Court argues in effect that a single comment cannot be sufficient to constitute a Doyle violation. A single comment, the Court suggests, does not amount to the "use" of a defendant's silence for impeachment purposes, and is not equivalent to an "inquiry or argument respecting the defendant's post-Miranda silence." Ante, at 764. What the Court overlooks, however, is the fact that a single comment is all the prosecutor needs to notify the jury that the defendant did not "tell his story" promptly after his arrest. Although silence at the time of arrest is "insolubly ambiguous" and may be "consistent with . . . an exculpatory explanation," Doyle,
The Court also notes that the trial court sustained defendant's objection to the prosecutor's improper question, and that the court later instructed the jury to disregard all questions to which an objection had been sustained. These actions minimized the harm this particular comment might have caused, the Court implies, and also distinguish this case from previous cases in which this Court has applied Doyle. Ante, at 764. In the case on which Doyle was squarely based, however, the Court reversed a conviction because of improper questioning regarding post-Miranda silence even though the jury was immediately instructed to disregard that questioning. See United States v. Hale, supra, at 175, n. 3. Moreover, the lower courts have routinely addressed similar situations, and in no case in which the prosecutor has commented on the defendant's silence have these courts found contemporaneous objections or curative instructions sufficient automatically to preclude finding a Doyle violation. Instead, the Courts of Appeals have examined the comment in context, and considered it along with the weight of the evidence against the defendant and the importance of the defendant's credibility to the defense, in determining whether a Doyle violation was harmless beyond a reasonable doubt.
The approach taken by the lower courts reflects both the serious impact of Doyle violations on the fairness of a trial, and the inherent difficulty in undoing the harm that they cause. With respect to their impact, more than one Circuit has recognized that "Doyle violations are rarely harmless." Williams v. Zahradnick, 632 F.2d 353, 364 (CA4 1980) (citing practice in the Fifth Circuit with approval). This is because "questions of guilt and credibility [are often] inextricably bound together," Morgan v. Hall, supra, at 1168, and because comments upon a defendant's failure to tell his or her story promptly after arrest may significantly undermine the defendant's credibility in the jury's eyes. This case illustrates the potential for harm. The only testimony the State offered that linked the defendant to the crime was that of an alleged accomplice. Jurors often give accomplice testimony reduced weight, particularly when the accomplice has received in return a promise of significant leniency.
Lower courts have also recognized that once the prosecutor calls attention to the defendant's silence, the resultant harm is not easily cured. First, the jury is made aware of the fact of postarrest silence, and a foundation is laid for subsequent, more subtle attacks.
Justice Simon of the Illinois Supreme Court has elaborated on this point:
Courts below have therefore considered prompt objections and curative instructions relevant to the question whether a comment on a defendant's silence is harmless error, but irrelevant to the question whether the comment violates Doyle. The Court today confuses the two inquiries, and thereby eliminates much of the protection afforded by Doyle.
Today's radical departure from established practice is particularly inappropriate because this ground for decision was not presented either to the courts below or to this Court. The State "concede[d]" in the Court of Appeals that "any comment referring to [defendant's] silence after that arrest
Today's decision saps Doyle of much of its vitality. I would adhere to Doyle's principles, and to the established practice of the lower courts. I dissent.
" `Q. [I]f that is all you had to do with this and you are innocent, when [the agent] arrived on the scene why didn't you tell him?' " Doyle v. Ohio, 426 U. S., at 614.
" `Q. . . . You are innocent?
" `A. I am innocent. Yes Sir.
" `Q. That's why you told the police department and [the agent] when they arrived — . . . about your innocence?
" `A. . . . I didn't tell them about my innocence. No.' " Id., at 614-615, n. 5.
" `Q. [Y]ou said instead of protesting your innocence, as you do today, you said in response to a question of [the agent], — "I don't know what you are talking about."
" `A. I believe what I said, — "What's this all about?" . . .
" `Q. All right, — But you didn't protest your innocence at that time?
" `A. Not until I knew what was going on.' " Id., at 615, n. 5.
The dissent also finds that "the prosecutor clearly got full mileage out of his Doyle violation during closing argument . . . by stressing that the accomplice's testimony was credible precisely because he had not remained silent after arrest." Post, at 773, n. 3. First, whether this argument constitutes "full mileage" is certainly debatable. Second, the dissent fails to note that defense counsel did not object to that portion of the prosecutor's argument on this ground.
We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an "overwhelming probability" that the jury will be unable to follow the court's instructions, Richardson v. Marsh, 481 U.S. 200, 208 (1987), and a strong likelihood that the effect of the evidence would be "devastating" to the defendant, Bruton v. United States, 391 U.S. 123, 136 (1968). We have no reason to believe that the jury in this case was incapable of obeying the curative instructions. And far from being "devastating," the fact of Miller's postarrest silence was at most "insolubly ambiguous." Doyle v. Ohio, 426 U.S. 610, 617 (1976). Miller argues that the curative instructions should have been more specific. But Miller's trial counsel bore primary responsibility for ensuring that the error was cured in the manner most advantageous to his client. Once it became apparent that the judge was not going to grant a mistrial, it was the duty of counsel to determine what strategy was in his client's best interest.
"We made a deal, if you want to call it that, with a guy [the accomplice] who's willing to tell the truth, a man who told the truth of his involvement on February 10, 1980 [the day after the crime]. Sure, he was wrong in details; sure, he left some things out; sure, his statement is confusing; sure, he lied at that time about not being with his brother as they left the Regulator Tavern at first, but he was in custody only a few hours. He was charged with murder. He knew they had him, cold turkey, but he told them a story, as they call it, an account, as I call it, shortly after his arrest, factually corroborated by an independent investigator. So if you call that a deal, put that aside. The question is, deal or no deal, did Randy tell you the truth. It really boils down to, who told you the story here and who told you the truth? You either believe Randy Williams or you believe `Chuck' Miller. That is your choice. It's as simple as that." Ibid.