Eric Weir v. Lloyd Fletcher, Superintendent, Bell County Forestry Camp

KEITH, Before ENGEL and Circuit Judges, LAMBROS, Judge.* District KEITH, Judge. Circuit Kentucky ap Commonwealth of peals granting from the district court’s aof * Lambros, Judge, Hon. Thomas D. United States District Court for the Northern District of sitting by designation. is not clear as to the While the evidence Eric Weir corpus. Petitioner of habeas

writ agreed fight, át his all witnesses his own defense cause of the the stand in took prosecutor fight court. The in state of the Buchanan during murder trial the course to comments Suddenly him and made Bu ground.2 cross-examined pinned Weir to after he concerning Weir’s silence jury shouting his feet that he jumped chanan to Mi given he was before was arrested but immediately left stabbed. Weir had been con The district court wife, randa momenta his returned the scene with Weir’s had violated the state cluded friend, and thereafter pick up a rily to in as outlined Rights, Fifth Amendment of some friends. He drove to the home 96 S.Ct. Doyle v. 426 U.S. police. reported the incident to never (1976). Accordingly, the dis 49 L.Ed.2d 91 in apprehended, was Subsequently, Weir a petition granted court Weir’s trict brought and to trial. dicted agree, and af corpus. We writ of habeas mur charged with intentional Weir was decision.1 Judge firm Johnstone’s Kentucky in violation of Revised Stat der trial, 507.020(l)(a). At he took

ute KRS testimony FACTS on His stand in his own defense. events inside direct examination detailed was convicted Petitioner Eric Weir fight and de up to the the bar which led man- degree first Kentucky state court of surrounding the scribed the circumstances stabbing of Ronnie slaughter in the death freely stabbing Weir admitted stabbing.3 during a stabbing The occurred Buchanan. Buchanan, claimed that he acted but night club in fight parking in the lot of a stabbing was acci- and that the Kentucky. self-defense County, McCracken wife, think, you My something, objection. I was know. The raises a threshold 1. The state So, attorney lodge go argues standing the door. I on and that Weir’s failed to there at state timely objection questions game pool, claimed to to the or was the rest of this shoot rights. says my The state constitutional violate Weir’s wife finished with it when almost they jumped procedural Well, state characterizes this failure as I didn’t know on Owen. default, precluding know, habeas action un- either, federal you going so I run was on prejudice” Wain- “cause and rule of der the just go down to the end of out the door and wright Sykes, 433 U.S. 97 S.Ct. Well, going building. I said what’s on? I (1977). wife, my talking and when I did I was disagree. Kentucky The state courts did him until 1 couldn’t see could see Owen. procedural default rule not invoke their own He was turned around. Ronnie Buchanan appeal. direct when reviewed the case on car, the end of down further towards Kentucky rely on Ken Since the courts did not you happening said I’ll tell what’s and he they’re rule, contemporaneous objection tucky’s we my my time wife car. At that all over this time. See likewise decline to invoke it at well, liar. When she said he’s a damn said Bordenkircher, (6th Cir.), F.2d 117 Cook running stronger just and at come on that he denied, cert. wife, my swinging which time the same (1979). standing right my side and was she we that while the state addition note me, past swung but I kind of back of me. He Magis the issue before the United States raised up my just arm to block I was throw —all trate, objec the issue in its it did not include evidently he come around that and left, report. magistrate’s Under these tions thing on I knew I was the next because circumstances, proper believe it to reach coming ground. him down I remember appeal. See United States the merits of this my legs, getting and he ahold of on me and Waiters, See also 638 F.2d 947 by legs picks up me gets when he and me Jenkins v. you standing my up, hair. I think on he’s n.1, longer pictures, than it was a little saw being upside Buchan- held down 2. Weir was now, dropped up He me and down. and he an. swinging half I was me all around. my beating time after about that conscious Well, shooting pool with—I didn’t I was times, ground and then he a few on the head don’t—I know him at the time and I still down, pin guess, just me or what- I comes I was in the think it was Kenneth Turner. ever; trying get knife remember game when I went out middle of the there; trying get up I was from I was out. Owen; so, get my goI back in and account of cigarettes me, shape. down on He come in bad pool game play a half a dental. This was the first time he medical had prosecutor attention. then story exculpatory offered an for his actions. turned knife, to the issue asking Weir happened how he to stab Buchanan vigorously prosecutor cross-examined and how happened the knife disappear inquired Weir. He into Weir’s assertion after stabbing.4 also injured. seriously had been Weir questioned Weir about his failure report injuries required admitted that his hot had got then he and I heard him he had up say Well, Q you it, didn’t offer did you? got been stabbed. Then I and I was up A pret- No. straighten I ty couldn’t dizzy. really real up Then Q you took off towards Paducah good. seeing backing I remember him heading right? away, home, just get together and I tried to my stuff and just leaving. A I was get out there. Then Q you came back and picked up I, didn’t know who was with who, what. right? Owen and Debby, There were several I around that people A Yes. didn’t but I Owen. think everybody And Q know — after some period, you did end up chasing that she I mentioned that was them in Barlow, correct? something, I the walk or had no up inten- Yes, A sir. just trying tion to chase I was anybody. long How did Q there? you stay truck on the far end my parked to — the A Well, we went to Barlow and we stayed building trying I wife, and was to find my night all down there until probably 10:00 along and I think I run her across somewhere morning. o’clock the next got about I door, the front and her and said go? go Then where Q did you Did to you go. get let’s We went on down to in the Wickliffe after that? going truck and backed out towards Padu- A Yes, sir. cah. What did Q you do Wickliffe? A I a stopped by friend mines house Well, Q were I you upside down, as recall over there. It wasn’t his house, it was his and you said, took the knife off you the grocery place of business. had They store on pouch your side, it you opened up got and I some sandwich meat and lunch right?. with both hands and him, stabbed meat. No, A sir. He fell on it. When he come that, Who’s Q place Mr. Weir? down on he me, come down on the knife. A That’s Bill Compton. What did have Q you the knife out long How were there? Q you then? Oh, A an approximately hour, maybe going get A I was to to him try off me. longer little maybe two hours. get You — did him off Q didn’t you; you? Did talk Bill Q you about Compton A Yes. what happened? Let me Q you ask about that knife disap- No, A sir. pearing like it did. Where did you say you it? put A It was on the doing? evidently tool box you What did tell him Q were you back of the just truck. A I called him and asked him if he Why did it Q there? if you put didn’t minded I came Why over. it you put back coming pouch? What you did tell him Q were you A Well, I was kind shook over up. there for? Now, Q just you say took the you keys out A Well, I asked him if I could stay right? and unlocked the car; that house, over at his and he said sure. A Yes, sir. All four of Q you? Q Why didn’t you knife back in put your Why didn’t tell Q you them at the time if pouch, didn’t? you fell down on accidentally your knife? just A I don’t know. laid it on the Well, truck A I didn’t— gone. it was evidently; MR. OSBORNE: Do Judge, again, going object. Q you remember or did I now, am He had somebody anything that? say no reason to tell them at the time. laying A I right. remember distinctly there THE All up COURT: trying to find the BY MR. BRYANT: keys. The Q next when the day State Police and us. Go ahead tell Q ought came to house your it, and A searched I didn’t feel I to tell why them any- just thing. didn’t tell you them that lost it? A I don't know. That’s after knife Okay. your Q disap- Q Why didn’t tell you State Police and after fled all over you Ballard peared where the knife was? Barlow, and Wickliffe; and 17 hours County, guess A I don’t even asked me. later You don’t want you picked up. pre- (1980), his Court ruled police disclose to the and the incident guilty impeach could be story.5 Weir was found used exculpatory arrest manslaughter his convic degree who takes stand. Under of first appeal. prosecutor’s on direct examina- tion was affirmed much of the proper. of the defendant was tion writ of habeas petitioned for a Weir then effort claiming prosecutor’s corpus prosecutor is that problem testimony, inquiring into his impeach petitioner’s stop questioning pre not to offer commenting his failure went on to arrest silence. officers story exculpatory why he had not disclosed ask Weir arrest, his consti- time of his violated at the when location state knife’s Citing supra, and rights. Doyle, tutional his house to him. they came to arrest California, 609, why Griffin he didn’t prosecutor also asked Weir the district explanation give exculpatory try to upon the the writ conditioned granted court police when arrested.7 the state he was Kentucky to right of the Commonwealth record that appear not from the It does days. within 120 The Common- retry Weir the state went to Weir’s at the time appealed. has wealth him, they immedi arrested that house and Preliminary Discussion I. Thus, warnings to him. ately read question presents threshold this case questions by asked We can divide be used to post-arrest silence can whether con prosecutor into two basic areas: those defendant, though Miranda impeach a even by the flight silence and cerning pre-arrest given not him. For rea warnings were to petitioner concerning post-arrest those below, that a we conclude discussed sons prosecutor’s questions Most of the silence. impeached.8 be so cannot defendant prosecu The pre-arrest silence. dealt did not that the emphasized tor defendant Impeachment the Basis II. on go apprehended and was not to Post-Arrest Silence stabbing. prose The hours after the for 17 limiting underlying rationale for grilled happened Weir cutor also as to is impeachment because of silence weapon knife with to the murder —the is so most circumstances silence that “[i]n which Weir stabbed victim.6 is ambiguous that it of little Hale, far, there States v. Thus was no constitutional force.” United 99 impropriety. In Jenkins addition, In U.S. go Department, course, They anything? you to the Police don’t Q

tell us about Of go. you have to. didn’t MR. OSBORNE: A No. going Again, object Now, you I’m to and move to that Paducah. headed towards Q discharge Jury in case you going this this this Why Court Paducah? were towards home, Well, because of the conduct on cross-examination. going guess. I was I was I A THE COURT: Overruled. just going home. apparently found. knife was never 6. The Now, Weir, happened, your after this Q truck, his he left in back of said it defendant me, very intrigues really. inter- defense It’s n.4, supra. esting happened, is the to me. After it if this why you way happened, go didn’t n.4, supra. 7. See Department? Police know, really, A I didn’t how bad he appeal argues that 8. The Commonwealth hurt, very if at all. or he was hurt bad unclear, we should record is so because the really didn’t know. evidentiary hearing when as to for an remand very badly, right, All so he wasn’t hurt Q warnings given. Because we were why you go Department? didn’t to the Police whether it makes difference that conclude Why anybody go A didn’t to the Po- else not, given warnings no need to there is Why everybody Department? out lice didn’t go Department? remand. to the Police there post-arrest defendant with at the time of arrest . .. also silence. evidence potential significant prejudice. Nonetheless, has a we conclude that danger likely that jury is is post-arrest of a defendant with is silence assign weight much more to the defend- Constitution, regardless by forbidden silence than is previous ant’s warranted. given. whether Miranda are explain permitting And Jenkins were on a decided ration- unlikely his silence the reasons for ale of basic fairness. We think that it is strong negative overcome the inference inherently unfair to allow cross-examina- likely to jury that draw from the concerning post-arrest tion silence. fact remained silent First, believe at the time of his arrest.” Id. at probative. is not the Supreme (citation omitted). S.Ct. 2138 thought many circumstances course, Hale, of was decided under the pre-arrest probative: silence was supervisory authority Court’s over traditionally law has Common allowed proceedings. federal impeached previ- witnesses their 91 (1976) ous failure to state a fact in circumstanc- the Court extended the rationale of United naturally es which fact would However, v. Hale state States cases. Wigmore, have been asserted. 3A Evi- Doyle, dealing the Court was awith consti- (Chadbourne dence rev. § question holding tutional and its was limit- jurisdiction may Each formulate ed: own its rules of evidence to determine impeachment hold that use for prior when silence sois inconsistent with silence, purposes petitioners’ present impeachment by statements that receiving time arrest and after Miran- probative. reference to such silence is Id. warnings, da violated the Due Process at 2129. Clause of the Fourteenth Amendment. itself, In the Doyle, supra, Jenkins case defendant 426 U.S. at 96 S.Ct. at not come forward claim self-de- fense until trial. The state courts could A key premise underlying Doyle was the conclude that his failure come forward giving unfairness of warnings to a proper ground earlier was a for cross-exam- defendant —which include statement ination. the defendant right has the to remain si- impeaching lent —and then We think that Jenkins should be limited trial with that silence. As the Court pre-arrest to instances of silence. Whatev- noted, “[sjilence in the wake of [Miranda] pre-ar- er value in a silence has warnings may nothing more than the context, rest has none in a rights.” arrestee’s exercise these Miranda situation. An arrest initiates a formal se- Id. at 96 S.Ct. at 2244. against proceedings ries of a defendant. vein, a similar in Jenkins v. The defendant stands accused of a crime. circumstances, Under these fear and anxi- (1980), the pre-arrest Court held that silence ety will lead defendant —whether inno- was a proper subject for cross-examination guilty cent or silence. As Justice Mar- —to

of a suspect at trial. The Court concluded Hale, shall stated in su- United States that inquiry pre-arrest into silence was not pra : unfair governmental because “no action in- during At the time arrest and custodial petitioner duced to remain silent before ar- interrogation, guilty innocent and alike— rest.” supra, perhaps particularly may the innocent — superficial

There is logic intimidating thus a the situation so find position only government may when a A choose to stand mute. varie- actually officer warnings reads Miranda ty of reasons influence decision. a defendant is it to impeach unfair confusing In these often emotional and Doyle thought Jenkins and it unfair to circumstances, suspect may not have “govern- where impeach use question, or fully understood the heard or petitioner induced to remain mental. action reply. need to may have felt there was no Jenkins, supra, silent.” at 2130. of Due Process Traynor, The Devils itself, arrest, by gov- We think that an Detection, Detention, and Tri- in Criminal implicitly action which induces a ernmental al, He 33 U.Chi.L.Rev. to remain silent. When one com- in re- may have maintained a silence suspect’s bines a fears and anxieties perhaps hostile and unfa- sponse to the knowledge widespread arrest with of one’s surrounding atmosphere miliar his deten- silent, right result is often to remain tion. realities, just these that —silence. Given little force in a These considerations have fundamentally think it is unfair to allow situation, through any post- before one stands ac- the use of pre-arrest arrest silence. changes things. The fact cused. Arrest significant been arrested is that one has of this case illustrate this un- facts make a difference. and should got fight Petitioner Weir into a fairness. with Ronald Buchanan and stabbed Bu- important reason not to There is a second during fight. Petition- chanan death permit post-arrest silence to be used as delay, police er fled. After some came impeachment. widespread There is knowl- to his house and arrested him. The is arrested has edge society that one who repeatedly also searched the house. When obligation speak to the and that questioned why at trial as to he didn’t ex- attorney. is entitled to consult with an culpate police, petitioner himself widely publicized The news media has ought “I tell stated that didn’t feel and its formal re- Miranda case anything.” them stated, quirement. Simply many if not petitioner absolutely correct. persons most under arrest know of their best course of action was to consult His exercise that to remain silent and with counsel and remain silent until then. fact, right. many lawyers give out the was clear that generally He knew this. It routine advice to their clients that if the legal problems as a petitioner would face reason, any client should be arrested for the extent fight. result of the The nature and nothing and call the attor- say client should however, difficulties, was unclear. of these ney. persons We who are do not think that not Petitioner’s silence was thus exercising remain silent their unfairly prejudicial was for the guilt. It trial.9 prosecutor pursue this matter at penalized should be for it. Nunez-Rios, exception cryptic position. 622 in United States v. 9. With the of a dictum 869, Caro, (2d 1093, 1980); (2d States v. 637 F.2d 876 United United F.2d 1100-01 Cir. Rowe, 1981), post-Jenkins suggested (7th no court has Cir. States ex rel. Allen v. 591 F.2d 391 impeachment propriety 1979), the use of vacated and remanded for reconsid Cir. post-arrest 231, Jenkins, silence turns on whether Miranda light in 447 U.S. 100 eration warnings given. were In United States v. Har 2124, (1980); Bradford v. S.Ct. rington, (9th 1980), Stone, 1979); 636 F.2d 1182 Cir. the court (9th Douglas 594 F.2d 1294 Cir. error, harmless, 266, found v. Ohio albeit (9th 1978), Cupp, cert. 578 F.2d 267 Cir. impeached post-ar 865, where denied, 1081, the 99 439 U.S. S.Ct. in 174, rest silence. There was no indication (1979); People Conyers, 49 N.Y.2d 52 given. warnings 402, case that Miranda had been 400 N.E.2d 342 vacat 424 N.Y.S.2d Curtis, 644 F.2d 263 light Accord United States v. in and remanded for reconsideration ed error, (3d (Doyle 2124, Cir. v. Ohio no evi 447 U.S. 100 65 S.Ct. read.) warnings dissent, See also (1980). dence Miranda 86 Unlike the Olim, (9th 1980) (Doyle summary Alo v. 639 F.2d 466 Cir. significance would accord no silence; error, post-arrest vacating v. Ohio Miranda and re order given, suggestion opinion warnings light in but no manding a case for reconsideration controlling); Williams v. Zahrad intervening precedent. that nick, this (4th 1980) (same). finally holding agree 632 F.2d 353 Cir. note is in that our Black, (6th addition, pre-Jenkins 4 ment with Minor v. 527 F.2d a number of denied, 1975), post-Doyle our Cir. cert. 427 U.S. decisions are in accord with 1132 required

III. Some Practical Considerations are not suspect where a simply is taken custody, into but rather where a sus If we were limit to instances pect in custody subjected to interroga where the police actually read Miranda 11 tion.” defendant, warnings many practical problems arise. Thus, police have some discretion in deciding when to read warnings. Miranda First, penalize knowledge- would If we limited Doyle v. Ohio to instances above, able defendant. many As indicated police where the actually read the warn- persons rights are aware of their and do not ings, they could Doyle through eviscerate need to be read Miranda We see simple expedient reading of not logic allowing Miran- impeachment of the warnings da defendant who tells the time arrest. The that he is rights aware of could suspect and wants to arrest a talk to his and be attorney, impeachment but not careful allowing interrogate not if him for 15-20 the police actually read the minutes. the police question Miranda warn- If wanted to ings. suspect, they could then read the Miran- da warnings. suspect If the had remained Second, a position such discourage would minutes, silent for those 15—20 that silence reading warnings. By of Miranda its be could used trial. terms, applies custody Miranda to “in inter Such illogical. result would be rogation.” Arizona, Miranda v. 1602, 1624, S.Ct. L.Ed.2d 694 IV. Harmless Error (1966). post-arrest This interrogat means good argument state has a police departments ion.10 Most routinely improper post-arrest use of silence in this have officers read warnings at the beyond case was harmless a reasonable time helps of arrest. prevent This difficul prosecutorial doubt. The unlawful inquiry ties which develop if the officer and into Weir’s pro- was not way converse on the longed emphasized. addition, police station. Innis, See Rhode Island v. questions paralleled questions prosecu- L.Ed.2d 297 properly tor asked about pre-arrest Weir’s (1980); Williams, Brewer 97 silence. The issue of harmless error More Doyle v. Ohio up situations has come often. important, procedure this ensures that We refer the reader Williams v. Zahrad- rights aware of his from the nick, 1980) F.2d 360-65 inception However, of the arrest. there is (citing cases) numerous for an extensive no requirement that the discussion question. of this read the time of As arrest. the Court Innis, noted in Rhode supra, Island v. In this we conclude that 300, 1689, U.S. at 100 S.Ct. at special “the error was beyond not harmless a reasonable procedural safeguards in outlined Miranda dealing doubt. We are fight with a which 3189, (1976) prophylactic safeguarding United States means of Fifth Brinson, (6th v. 1969). 411 F.2d 1057 rights, Michigan Tucker, Cir. Amendment see v. 433, 2357, 417 U.S. 443-444 S.Ct. [94 2363- States, 10. See Beckweth v. United 425 U.S. 64, (1974), require 41 L.Ed.2d 182] that 1612, (1976); 96 S.Ct. 48 L.Ed.2d 1 Orozco person custody taken into be advised imme Texas, v. 394 U.S. 89 S.Ct. diately silent, right he has the to remain (1969); States, Mathis v. United anything says might against be used 20 L.Ed.2d 381 him, and that he has a to a retained or (1968). appointed submitting counsel before to inter 11. The Court thus overstated Miranda’s re- rogation. Silence in the wake of these warn quirements Ohio, Doyle in 426 U.S. at ings may nothing be more than the arrestee’s S.Ct. at 2244: rights. Thus, exercise these of Miranda ev Despite importance cross-examination, of ery post-arrest insolubly ambiguous silence is we have concluded that the Miranda decision required because of the state is to ad compels rejection position. of the State’s person vise the arrested. The mandated as a encourage essence similar misconduct in fu- expected, stabbing. As can be ended testimony conflicting. The the witness’ ture cases. I do not feel that we can allow murder, that, Weir not of but of jury convicted prosecutors the discretion to decide degree manslaughter. evidence, first ample having presented untainted they may type make this of comment with- applying should be cautious in Courts jeopardizing out the outcome of their case. error doctrine. Eberhardt v. harmless Bordenkircher, 278-80 605 F.2d case, although In this the error ENGEL, Judge, dissenting. Circuit pronounced, may well have af-

was not respectfully I dissent. circum- jury’s fected the decision. The Ohio, 610, 619, Doyle v. U.S. surrounding fight stances and subse- 2240, 2245, 49 L.Ed.2d 91 quent stabbing very muddled at trial. Supreme held that “the use for Court important fact- jury plays particularly A impeachment purposes petitioners’ si jury finding like this. A role cases lence, at the time of arrest and after receiv opportunity have an to determine should ing warnings, violated the Due the taint of con- culpability Weir’s without the Fourteenth Amend Process Clause of er- stitutional error. We conclude that the added). (Emphasis majority ment.” beyond ror was not harmless a reasonable today misapplied has misconstrued and doubt. affording process rationale in due V. Conclusion on the protection to Eric Weir’s silence judgment of the district court is af- majority’s facts of this case. I believe the firmed. plainly view is so at odds authority1 that we are foreclosed LAMBROS, Judge, concurring. District taking position. from such a opinion While I completely concur in the Keith, by Judge emphasize filed wish to I. that we do not hold that The crux of this case can most proper subject prosecutorial is never a balancing important described as two ele- comment, only propriety justice system ments of our criminal depend such comment whether —full does not factual disclosure in order to ascertain or not defendant has been read former process due of law. The truth and Thus, example, if a indeed a crucial concern. testifies that he told the develop all relevant facts The need to exculpatory version of the facts arrest, adversary system is both fundamental then the fact of silence ends of criminal challenge comprehensive. course be used to the defendant’s judgments following justice behavior would be defeated if arrest. 610, 619-20, n.11, specu- partial founded on a were to be 2245, n.11, (1976). presentation 49 L.Ed.2d 91 the facts. lative Nixon, 683, 709, finding United States

I also wish to elaborate on our prejudicial Having error. held that com- Likewise, crossexamination prosecutorial complained

ments of the sort of here are development of plays a role in the constitutionally impermissible, to find that critical Yet, in they are would in for truth.2 nevertheless harmless facts and the search 643, (1971); 174, 179, People Conyers, 1 and Brown v. S.Ct. 28 L.Ed.2d 1. See v. 49 N.Y.2d 622, 148, 402, (1980), States, 2 424 N.Y.S.2d 400 N.E.2d 342 sum- United 356 U.S. 78 S.Ct. vacated, Conyers, marily (1958). 449 U.S. New York 56, 809, (1980); 12 Jen- 101 66 L.Ed.2d S.Ct. 231, 2124, 610, n.7, kins v. 447 U.S. 100 S.Ct. 426 U.S. 617 96 In 2. States, (1980); n.7, 91, 65 L.Ed.2d 86 Roberts v. United 2240, the Su- 2244 S.Ct. 552, 1358, 445 U.S. 100 S.Ct. 63 L.Ed.2d 622 preme stated: Court York, 222, (1980); Harris v. New 401 U.S. 91 1134 Supreme Court found that due II.

process inquiry prosecutorial barred into a This type case does not involve the at defendant’s silence the time of his arrest. Doyle, “fundamental unfairness” found in explicit where warnings Miranda induced Supreme grounds Court had two prom to remain silent and Doyle holding, intimately its both related to respected.3 ised his silence be would There police given the fact that the had Miranda is no warnings evidence that Miranda warnings to the defendants at the time of given arrest, ever to Eric Weir. Weir’s their arrest. The Court first found that improper without evidence of some other warnings given been once Miranda had tactics, was not in itself fundamen “insolubly defendant’s became silence am- unfair; tally no were under obli biguous” thereby precluding jury’s use gation give warnings Miranda until of such exculpatory silence to discredit an began process interrogation. Rhode story ruling, trial. offered at In so a ma- Innis, 291, 300-01, Island v. 446 U.S. 100 jority “[sjilence observed that Court 1682, 1689-90, S.Ct. 64 L.Ed.2d 297 may in the wake warnings of these be noth- People Conyers, 174, See also 49 N.Y.2d ing more than the arrestee’s exercise of 402, 342, (1980) 424 N.Y.S.2d 400 N.E.2d 350 J., warnings.” Doyle, (Meyer, vacated, these Miranda supra, dissenting), summarily 56, 101 426 U.S. at 96 S.Ct. at 2244. S.Ct. 66 L.Ed.2d 12 (1980). Nor, once Weir had taken Second, the Court stated that it would be stand, unfair for the “fundamentally unfair” to use a defend- cross-examine him as to his after activities impeach explanation ant’s silence to an of- stabbing. trial, at being fered after impliedly assured If takes stand and testi- [a defendant] express by warnings Miranda that silence defense, fies in his own credibility Id., carry penalty. would no 96 impeached testimony and his as- Implicit S.Ct. in this rationale is any sailed like that of other .... witness apparent apprehension that Miranda no set the jury has forth to “[H]e warnings employed, could be either deliber- all the facts which tend in his favor with- ately innocently, to induce silence which out laying open himself to a cross-exami- impeach later used to the defendant at nation those facts.” Thus, express trial. warnings Miranda States, Brown v. United 356 154- U.S. block future inquiry into silence order to 55, 622, 626, (1958) 2 L.Ed.2d 589 protect an individual from the fundamental States, (quoting Fitzpatrick v. United unfairness of impeachment contrived evi- 944, 948, U.S. 44 L.Ed. dence. (1900)). Doyle, supra, See also recognize, course, scope prosecu- privilege against that unless and limits of the self- leeway scope tors are allowed wide in the incrimination.” cross-examination some de- supra, In 100 S.Ct. at Justice fendants would be able to frustrate the truth- Powell, Doyle, who also authored stated: seeking by presenting function a trial tai- Only Doyle impeach- . . . we find lored defenses insulated from effective chal- ment lenge. violated the Constitution. also, that case a received n.8, U.S. 628-30 and S.Ct. at required by Miranda .... In this (Stevens, J., dissenting).

2249-50 and n.8 governmental petitioner action induced to re- Jenkins, supra, (1980), quot- 100 S.Ct. at 2129 petitioner main silent before the was taken ing States, 148, 156, Brown v. United custody given into and 622, 627, (1958), 2 L.Ed.2d 589 (Emphasis added). Supreme Court stated: Charles, And in Anderson v. testify Once a defendant decides to “[t]he party regard interests of the other for the stated, Doyle, “In held that justice function of the courts of to ascertain prohibits impeachment the Due Process Clause relevant, prevail the truth become in the following on the basis of a defendant’s silence determining balance of the considerations warnings.”

1135 p. J., main silent.” Ante at 1131. The fact of 625-26, (Stevens, at 2248 at 96 S.Ct. U.S. however, alone, is no substitute for dissenting). arrest on a constitutional of reliance evidence broadly asserts that because majority necessary pre- the right which is to rebut society” about knowledge in “widespread in this “that the sumption, applicable “many if privilege, Fifth Amendment Jenkins, su- privilege was not exercised.” of their under arrest know persons not most at 2133 n.9. pra, 100 S.Ct. exercise that remain silent and might As much right.” p. Ante at majority seemingly concludes arrest, before easily be said of silence as value, probative has no post-arrest silence time, is that matter. This any at other observes in his con- Judge but as Lambros underlying with the of course inconsistent recognizes curring opinion, even do of Miranda that most citizens premise circumstances, post-arrest certain rights their constitutional not know impeach a defendant. can be used to directly It must be informed of them.4 n.ll, 96 supra, 426 at 619-20 Doyle, U.S. in Jenkins that contradicts the observation Further, 2245 Justice Stevens n.ll. express assertion of the absence of an “[I]n accepted rules of acknowledged that “under self-incrimination], [against privilege evidence, . . ... silence . [a defendant’s] privilege presumption is that prior to a inconsistent tantamount be] [can Anderson, 447 Jenkins v. not exercised.” purposes of statement and admissible for 2124, n.9, 231, 100 S.Ct. U.S. Id., 622, at 2246. impeachment.” 96 S.Ct. J., concurring). (1980) (Stevens, 417, 420 610 F.2d In Charles v. States, 445 In Roberts v. United U.S. curiam, 1979), per rev’d U.S. 1358, 1364-65, 559-60, 63 L.Ed.2d 100 S.Ct. (1980), 65 L.Ed.2d 100 S.Ct. Supreme Court stated si- recognized post-arrest this court telling clarity: probative: be lence sometimes privilege against The Fifth Amendment proposition begin with the is not self- compelled self-incrimination every impeachment use prohibit not does executing requirement Miranda’s .... silence, of a defendant’s excep- creates a limited specific fundamentally un- only those which are privilege tion to the rule that the must be fair. added). (Emphasis claimed .... majority’s square Nor does the conclusion view, my majority’s approach In here purports precedent upon which it with the Supreme precisely persuaded Hale, rely, United States supra. It invites Conyers, to vacate Court where truth- innumerable occasions Hale, for rob- the defendant was arrested proc- seeking function of the criminal trial station, given bery, to the taken impeded, protecting without an ess will However, he refus- his price rights. The individual’s constitutional The defendant to make a statement. ed speculative gains too for such offered stand at his trial and took the Frankfurter, great. In the words Justice cross-exam- alibi defense. only the Fifth Amendment not it makes “of regarding post-ar- his ined the defendant safeguard against judicially a human ruling propriety rest silence. positive but a invita- coerced self-disclosure fed- inquiry as a matter of prosecutor’s party offers to tion to mutilate the truth a law, evidentiary eral Brown, supra, tell.” recognized: points majority at 627. The weight gains more “governmental of arrest as action Silence fact accusation, persists in the face of a defendant to re- where it implicitly which induces (1966). Arguably, the inquire pause in individual will not “[W]e from the ma- to be drawn eventual conclusion whether the defendant was aware of cases therapeutic being given.” jority’s rights warning is that Miranda's Miran- rationale without a longer Arizona, needed. rule is no da not view the rule p. such do as since it is assumed in circumstances Ante at likely penalty; that accused would be more provide the it to fails a shield dispute adequate than not untrue accusation. because there is no reason for it. assertion, however, Failure to contest an testify, If the may defendant elects to he acquiescence is evidence of explain considered still premised that his silence was only it if would have been natural under right. on the of exercise the That not a is object the circumstances to to the asser- shocking guilt; many confession of indeed tion. jurors may complete well be in sympathy logi- such conduct and find it utterly Id., at 2136. The Court had cal. is basically It no any different from noted, previously “If the Government fails concerning may testify. other fact which he inconsistency to establish a threshold be- jury I see harm letting weigh in the that tween at the silence station and later circumstance with all the others. trial, exculpatory testimony proof of si- any significant probative lence lacks value logic dispels The same also the notion and must therefore excluded.” Id. The police may deliberately that the withhold inconsistency Court refused to find an in preserve so as to the Hale because: opportunity impeachment to use silence for of very situation an arrestee is dif- [T]he so, purposes. Perhaps they do, but if may it ferent, for is duty speak he under no good opportunity get be at the risk of a and, case, as in this has ordinarily been confession, valid plans, and their well laid by government advised only authorities assuming they enough are astute to formu moments earlier that has the them, late will be frustrated if the accused remain silent .... never takes the stand. Most state courts added). Id. (emphasis power have the same to prohibit Unlike the in situation such Hale, quiry Weir is right. was not advised of this as vested in federal by courts Rule Evidence; 403 of the Federal Rules of if It is indeed difficult to why discern as a not, always therapeu has the practical matter, precise the moment ar- safeguard tic explaining his silence on rest automatically must any make silence any the stand. the probity lose all truth of a defendant’s has noted: exculpatory story. While holds that process rights . . . administration Miranda undoubted- makes ly provide[s] subsequent jury accused’s valuable aid to the “insolubly assessing ambiguous,” petitioner’s credibility, always has and the seemed to me at process lost, least benefits of this persuasive the more should not be reason is view, in our speculative that while because of the silence proba- still be tive, possibility impermissible police its value is con- diminished point thereby. duct will be outweighed encouraged by protect need integrity promise by made York, 222, 225, Harris v. New administration of the warnings. The majority asserts that failure ex- majority’s approach is strikingly here tend penalize will those defendants similar to the by rationale articulated who already know their majority Conyers, constitutional supra. I subscribe rights, even without generally expressed by the view Judge prosecutions specifi- Such may require, relief in federal Particular circumstances as a cally by afforded Federal Rule of Evidence 403: matter of fundamental fairness and hence process due relevant, evidence of a defendant’s Although may be evidence excluded necessary silence be excluded. It is if substantially its value is out- purposes here, however, only weighed by our to ob- danger prejudice, of unfair issues, serve that the fact of arrest itself does not misleading confusion of the or trigger jury, delay, fundamental fairness bar. considerations of undue time, presentation waste of or needless cumulative evidence. per in that case. The Meyer in his dissent majority today by rule articulated

se when it rejected by court’s decision

summarily vacated state rejected primarily Conyers. It has been places unjustified and unnec-

because it proc- truth-seeking

essary burden

ess. majori- agree with the

Even if I were to view, obliged

ty’s myself I would conceive reverse, pre- noting my obedience to the authority while ex-

vailing Supreme Court

pressing disagreement with it. I see my approach.

nothing wrong with such an my

This is how the law moves. This in appropri-

view would have been a far more majori- response

ate than that made

ty today. COMPANY, Plaintiff-Appellee,

DEERE &

INTERNATIONAL HARVESTER

COMPANY,

Defendant-Appellant.

No. 80-2208. Appeals,

United States Court of

Seventh Circuit.

Argued April

Decided July 2,1981. Denied Nov.

Certiorari 102 S.Ct. 514.

Case Details

Case Name: Eric Weir v. Lloyd Fletcher, Superintendent, Bell County Forestry Camp

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 9, 1981

Citation: 658 F.2d 1126

Docket Number: 80-3093

Court Abbreviation: 6th Cir.