6.8 CONSEQUENCES OF ASSERTING THE PRIVILEGE
6.801 In General. No adverse consequence should flow from asserting the privilege against self-incrimination. However, there is at least one
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exception to this general rule, 107 and a number of specific matters merit further attention.
6.802 Impeachment with or Comment upon Individual's Silence. The prosecution may not comment on the defendant's failure to take the stand in his or her own behalf 108 unless the defense first opens the door to that comment, 109 and that comment constitutes reversible error. A prosecutor's comment during voir dire examination that a defendant has a right not to testify and that this refusal cannot be used against the defendant is an impermissible comment on the defendant's right not to testify, even though it is a correct statement of law. The test whether a comment is impermissible is whether, under the circumstances, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused's right not to testify. 110 However, a prosecutor does not violate the Fifth or Sixth Amendment or deprive the defendant of due process when, at closing argument, the prosecutor calls the jury's attention to the fact that the defendant had the opportunity to hear all the witnesses testify and to tailor his or her own testimony accordingly. When a defendant takes the stand, the defendant's testimony may be assailed like that of any other witness. 111 When a defendant remains silent in response to an incriminating question during a non-Mirandized, noncustodial police interrogation but does not expressly invoke the privilege against self-incrimination, the prosecution's comments about that silence during closing argument do not violate the Fifth Amendment. 112
It is improper to attempt to impeach a defendant with the fact that pursuant to a Miranda v. Arizona 113 rights warning he or she remained si-
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lent. 114 Another Supreme Court case, however, has raised an interesting variation on these themes. In Jenkins v. Anderson, 115 the petitioner, convicted of manslaughter in a Michigan state court, complained that at trial his self-defense testimony had been unconstitutionally impeached when the prosecution brought forth the fact that he had not reported the homicide to the police until two weeks after the event and then argued that failure to the jury. The Court held that, even if the accused's pre-arrest silence could be considered as an assertion of the privilege, the Constitution did not prohibit impeaching an accused with pre-arrest silence. The Court reasoned that once a defendant takes the stand, that impeachment is appropriate to "the truth-finding function of the criminal trial." Consequently, a defendant's pre-arrest silence may be used for impeachment unless it follows Miranda warnings. 116 The Virginia Court of Appeals has ruled that the Commonwealth cannot use the defendant's pre-arrest silence in response to non-custodial questioning in its casein-chief (on the theory of an implied admission). 117
It is the use of an accused's silence against him or her at trial by way of specific inquiry or impeachment that forms the basis for a violation of the accused's rights; the Constitution does not bar any mention whatsoever of a defendant's request for counsel (after having received the Miranda warnings) but rather guards against the exploitation of the exercise of that right by the prosecutor. 118
6.803 Assertion of the Privilege on Cross-Examination. Although it is possible for the privilege against self-incrimination to be exercised for the first time on cross-examination, 119 significant confrontation problems are likely to arise. When a witness, after his or her testimony in chief, refuses completely to submit to cross-examination, a defendant's right of confrontation is violated and the witness's direct testimony should be stricken. But when a witness refuses to answer only one or a few questions on cross-
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examination, the right to confrontation is not necessarily violated. Whether the direct testimony should be stricken as violative of the confrontation clause is within the discretion of the trial court, considering factors such as the motive of the witness, the materiality of the answer, and the effectiveness of the cross-examination. 120 If the silence goes...
