On three occasions shortly after his arrest in Florida for sexual battery, respondent was given Miranda warnings, and in each instance he exercised his right to remain silent and stated that he wished to speak with an attorney before answering any questions. Respondent later pleaded not guilty by reason of insanity, and in the closing arguments in the Florida trial court, the prosecutor, over defense counsel's objection, reviewed police officer testimony as to the occasions on which respondent had exercised his right to remain silent, 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. Respondent's subsequent conviction was affirmed by the Florida Court of Appeal, which held that the general rule precluding prosecutorial comment as to a defendant's exercise of his right to remain silent did not apply to a case in which an insanity plea was filed. Respondent then unsuccessfully sought habeas corpus relief in Federal District Court, but the Court of Appeals reversed, holding that under the reasoning of Doyle v. Ohio, 426 U.S. 610 , respondent was entitled to a new trial.
The prosecutor's use of respondent's postarrest, post-Miranda warnings silence as evidence of sanity violated the Due Process Clause of the Fourteenth Amendment. Pp. 289-295.
STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. REHNQUIST, J., filed an opinion concurring in the result, in which BURGER, C. J., joined, post, p. 296.
Ann Garrison Paschall, Assistant Attorney General of Florida, argued the cause for petitioner. With her on the briefs was Jim Smith, Attorney General.
James D. Whittemore, by appointment of the Court, 472 U.S. 1006 , argued the cause and filed a brief for respondent. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Charles S. Sims and Jack D. Novik; and for the Illinois Psychological Association by Donald Paull and Marilyn Martin.
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). [474 U.S. 284, 286]
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:
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. 1 In his case in [474 U.S. 284, 287] chief, the prosecutor introduced the testimony of Officer Pilifant and Detective Jolley. They described the occasions on which respondent had exercised his right to remain silent and had expressed a desire to consult counsel before answering any questions. Both officers repeated the several colloquies with respondent. In his defense, respondent did not testify, but two psychiatrists expressed the opinion that he was a paranoid schizophrenic who had been unable to distinguish right from wrong at the time of the alleged offense. In rebuttal, the prosecutor relied on a third psychiatrist who expressed a contrary opinion.
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. 2 The jury found respondent guilty and the judge sentenced him to life imprisonment. [474 U.S. 284, 288]
By a 2-to-1 vote, the Florida Court of Appeal for the Second District affirmed the conviction. Greenfield v. State, 337 So.2d 1021 (1976). After noting that "prosecutorial comment relating to a defendant's insistence on his right to remain silent generally constitutes reversible error," id., at 1022, the majority held that the general rule did not apply to a case in which an insanity plea had been filed. The dissenting judge suggested that the application of the general rule would not have prejudiced the prosecution because the "questions and answers could have been couched in such a manner as to permit the officer to convey to the jury the fact that the appellant carried on a perfectly rational conversation without specifically stating that he chose to avail himself of his right to remain silent." Id., at 1023.
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 [474 U.S. 284, 289] Magistrate, however, agreed with the Florida courts' disposition of the merits and recommended that the habeas corpus petition be denied. The District Court accepted that recommendation. 3
The United States Court of Appeals for the Eleventh Circuit reversed. 741 F.2d 329 (1984). Disagreeing with two other Federal Courts of Appeals 4 - but not with the position taken by the Florida Supreme Court in a case decided after this respondent had exhausted his state remedies, see State v. Burwick, 442 So.2d 944 (1983), cert. denied, 466 U.S. 931 (1984) - the Court of Appeals held that under the reasoning of Doyle v. Ohio, 426 U.S. 610 (1976), respondent was entitled to a new trial. We agree.
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 [474 U.S. 284, 290] and therefore violated the Due Process Clause of the Fourteenth Amendment.
The source of the unfairness was the implicit assurance contained in the Miranda warnings "that silence will carry no penalty." 5 The critical importance of the implied promise that is conveyed to an arrested person by the Miranda warnings has been repeatedly confirmed in subsequent decisions. Thus, in Fletcher v. Weir, 455 U.S. 603, 606 (1982), we explained:
The Florida Attorney General argues that Doyle does not control this case because proof of sanity is significantly different from proof of the commission of the underlying offense, and that the Doyle due process rationale thus does not apply. At the outset, we note that, in this case, unlike Doyle and its progeny, the silence was used as affirmative proof in the case in chief, not as impeachment. 8 The Florida Attorney General argues that an insanity defense should be viewed as an "affirmative defense," and that the use of silence to overcome an insanity defense should thus be viewed as impeachment. Without accepting that argument, or its characterization of the insanity defense, 9 we address the claim that the Doyle due process analysis should not prevent the use of post-Miranda warnings silence to overcome an insanity defense.
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. [474 U.S. 284, 293]
The Florida Attorney General argues, however, that introduction of the evidence of respondent's post-Miranda warnings silence no more violates the Constitution than did the reference to a defendant's refusal to take a blood-alcohol test in South Dakota v. Neville, supra. In Neville, we rejected the due process challenge - and the attempt to rely on Doyle - because of the important differences between the refusal to take a blood-alcohol test and the post-Miranda warnings silence. We noted that, unlike the refusal to take an optional blood-alcohol test, the right of silence after Miranda warnings is of constitutional dimension. 459 U.S., at 565 . We also noted that, unlike the state warning about the refusal to take the blood-alcohol test (which expressly advised Neville that his refusal could be used to deprive him of his driving privileges), Miranda warnings contain implied assurances that silence will not be used against the suspect. 459 U.S., at 565 -566. Both Doyle elements - the constitutional dimension and the implied assurance - are equally present when post-Miranda warnings silence is used to prove sanity. Unlike Neville, therefore, and like Doyle, Greenfield received "the sort of implicit promise to forgo use of evidence that would unfairly `trick' [him] if the evidence were later offered against him at trial." 459 U.S., at 566 . 10
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 [474 U.S. 284, 294] to reject this argument. 11 For the ambiguity of the defendants' silence in Doyle merely added weight to the Court's principal rationale, which rested on the implied assurance contained in the Miranda warning. See South Dakota v. Neville, 459 U.S., at 564 -565; Jenkins v. Anderson, 447 U.S. 231, 239 -240 (1980). 12 The Attorney General's argument about the probative value of silence therefore fails entirely to meet the problem of fundamental unfairness that flows from the State's breach of its implied assurances.
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. [474 U.S. 284, 295] However, as the dissenting judge in the Florida Court of Appeal recognized in this very case, the State's legitimate interest in proving that the defendant's behavior appeared to be rational at the time of his arrest could have been served by carefully framed questions that avoided any mention of the defendant's exercise of his constitutional rights to remain silent and to consult counsel. 13 What is impermissible is the evidentiary use of an individual's exercise of his constitutional rights after the State's assurance that the invocation of those rights will not be penalized.
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. 14
The judgment of the Court of Appeals is affirmed.
[ Footnote 2 ] He argued, in part:
[ Footnote 3 ] The Florida Attorney General did not object to the Magistrate's conclusion that the Florida Court of Appeal had rejected respondent's claim on its merits. In his petition for rehearing in the United States Court of Appeals for the Eleventh Circuit, the Attorney General renewed the argument that the postarrest, post-Miranda warnings silence issue was barred by Wainwright v. Sykes, 433 U.S. 72 (1977). He advances the same argument in this Court. However, as the Magistrate concluded, the Florida appellate court clearly addressed the issue on the merits. Thus, we must reject the Attorney General's argument. See Ulster County Court v. Allen, 442 U.S. 140, 149 (1979); Mullaney v. Wilbur, 421 U.S. 684, 704 , n. (1975) (REHNQUIST, J., concurring). Cf. Franks v. Delaware, 438 U.S. 154, 161 -162 (1978); Raley v. Ohio, 360 U.S. 423, 436 -437 (1959); Manhattan Life Insurance Co. v. Cohen, 234 U.S. 123, 134 (1914).
[ Footnote 4 ] See Sulie v. Duckworth, 689 F.2d 128 (CA7 1982), cert. denied, 460 U.S. 1043 (1983); United States v. Trujillo, 578 F.2d 285 (CA10), cert. denied, 439 U.S. 858 (1978).
[ Footnote 5 ] "Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. Mr. JUSTICE WHITE, concurring in the judgment in United States v. Hale, [422 U.S.], at 182-183, put it very well:
[ Footnote 6 ] That this "fundamental unfairness" derives from the implicit assurances of the Miranda warnings is supported by our holdings that due process is not violated by the impeachment use of pre-Miranda warnings silence, either before arrest, Jenkins v. Anderson, 447 U.S. 231 (1980), or after arrest, Fletcher v. Weir, 455 U.S. 603 (1982), or of post-Miranda warnings statements, Anderson v. Charles, 447 U.S. 404 (1980); nor is it violated by the use of a refusal to take a state test that does not involve Miranda-like warnings, Neville.
[ Footnote 7 ] Notably, the Court in Doyle did not rely on the contention that Ohio had violated the defendants' Fifth Amendment privilege against self-incrimination by asking the jury to draw an inference of guilt from the exercise of their constitutional right to remain silent. Cf. Griffin v. [474 U.S. 284, 292] California, 380 U.S. 609 (1965) (Fifth Amendment prohibits prosecutorial comment on defendant's refusal to testify).
[ Footnote 8 ] The constitutional violation might thus be especially egregious because, unlike Doyle, there was no risk "that exclusion of the evidence [would] merely provide a shield for perjury." 426 U.S., at 626 (STEVENS, J., dissenting).
[ Footnote 9 ] Cf. n. 1, supra.
[ Footnote 10 ] To the extent that the Attorney General seeks to rely on Neville's Fifth Amendment holding, his argument is inapposite because the Doyle analysis rests on the Due Process Clause, not the Fifth Amendment.
[ Footnote 11 ] We note, however, that the Florida Supreme Court does not share the Florida Attorney General's view about the probative value of silence in an insanity context. As the Florida court wrote in State v. Burwick, 442 So.2d 944, 948 (1983):
[ Footnote 12 ] Several commentators have also emphasized that, particularly in light of later cases, Doyle's probativeness rationale is secondary to its implied assurance rationale. See, e. g., Note, Protecting Doyle Rights After Anderson v. Charles: The Problem of Partial Silence, 69 Va. L. Rev. 155, 165, n. 56 (1983); Clark, Impeachment With Post-Arrest Silence: The Emergence of a "New Federalism" Approach, 19 Am. Crim. L. Rev. 751, 759 (1982); The Supreme Court, 1979 Term, 94 Harv. L. Rev. 77, 84-85 (1980).
[ Footnote 13 ] In his petition and brief, the Attorney General has not contested the Eleventh Circuit's view that the prosecutorial comment was directed at the "defendant's post-Miranda warning silence," 741 F.2d 329, 333 (1984), or its conclusion that this comment, if erroneous, was not harmless, id., at 336. Nor has respondent contested the point that a prosecutor may legitimately inquire into and comment upon "purely `demeanor' or `behavior' evidence." Brief for Respondent 14. With respect to post-Miranda warnings "silence," we point out that silence does not mean only muteness: it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.
[ Footnote 14 ] This conclusion is supported by a number of state decisions, in addition to that of Florida. See Commonwealth v. Mahdi, 388 Mass. 679, 448 N. E. 2d 704 (1983); People v. Vanda, 111 Ill. App. 3d 551, 444 N. E. 2d 609 (1982), cert. denied, 464 U.S. 841 (1983); People v. Schindler, 114 Cal. App. 3d 178, 170 Cal. Rptr. 461 (1980). [474 U.S. 284, 296]
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring in the result.
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:
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. * [474 U.S. 284, 298]
Nor does the "unfairness" prong of Doyle, based on the implicit assurance in the Miranda warnings that "silence will carry no penalty," bar prosecutorial comment on respondent's requests for a lawyer. Officer Pilifant told respondent: "You have a right to remain silent. Anything you say can and will be used against you in a court of law." App. 73. The logical corollary of this warning - that what respondent does say can be used against him - is that what he does not say cannot.
Officer Pilifant's description of respondent's right to counsel was framed differently:
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 [474 U.S. 284, 299] questioning, which is derivative of his right to remain silent, see Miranda v. Arizona, 384 U.S. 436, 469 -470 (1966), is not unconstitutionally burdened by use of his request as evidence of his ability to distinguish right from wrong.
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 only portion of the summation that can, in my opinion, be said to violate Doyle is the following:
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 [474 U.S. 284, 301] violated the constitutional rights of the defendant. The court stated:
[ Footnote * ] It may be, as the Court suggests, that the prosecution could have served its legitimate purposes "by carefully framed questions that avoided any mention of the defendant's exercise of his constitutional righ[t] . . . to consult counsel," ante, at 295. That the prosecutor might have done things differently, however, does not render unconstitutional his express reference to respondent's invocation of his right to counsel. Indeed, I [474 U.S. 284, 298] would think that quotation of a defendant's precise words is a far more effective means of disproving insanity than are general references to his "rationality" or "responsiveness." [474 U.S. 284, 302]