Defendant’s Silence After Being Given Miranda Warnings Cannot Be Used To Impeach Him, But His Stated Explanation For Remaining Silent Can

Generally, the Supreme Court held in Doyle v. Ohio, 426 U.S. 610 (1976) that a Mirandized defendant who elects to remain silent in the face of questioning cannot have that silence used against him at trial, either on the prosecution's case in chief or via impeachment or rebuttal. (The Court did suggest an exception for circumstances in which a defendant testifies at trial that he did provide police with an exculpatory explanation in response to their questions, when in fact he elected not to answer their questions; then, he can be impeached with that silence since it directly contradicts his trial testimony). A different rule applies to statements made voluntarily by a defendant whom police erroneously failed to Mirandize; while those statements may not be used on the prosecution's case in chief, they may be used to impeach or rebut. New York v. Harris, 495 U.S. 14 (1990).

In United States v. Gomez, 2013 WL 3988705 (9th Cir., Aug. 6, 2013), the Ninth Circuit was faced with a hybrid situation: a defendant, administered Miranda warnings after his arrest, elected to remain silent but offered police an explanation for his silence, namely that he feared for the safety of his family if he responded to border agents' questions about how 15 packages of methamphetamine ended up in the gas tank of his car. His proffered explanation obviously suggested that he was part of a conspiracy with violent drug traffickers. After Gomez testified at trial that he was unaware that the drugs were in the car at all, the district court allowed the government to call an interviewing agent on rebuttal to testify to Gomez's incriminating...