The defendant was suspected of a homicide. He turned himself in two weeks later. At his trial for first-degree murder, the defendant took the witness stand and contended that the killing was the result of self-defense. The prosecutor argued that the defendant’s two-week delay in reporting the incident was inconsistent with self-defense.
Whether the government’s use of the defendant’s pre-arrest silence violated his constitutional right to remain free from self-incrimination?
No. The use of the defendant’s pre-arrest silence was not contemplated by the Fifth Amendment privilege from self-incrimination.
The Court long ago held that the “immunity from giving testimony is one in which the defendant may waive by offering himself as a witness,” citing Raffel v. United States, 271 U.S. 494 (1926). When the defendant took the witness stand in this case, the prosecution was entitled to impeach his testimony as inconsistent with his previous actions. Courts have repeatedly allowed the impeachment of witnesses with their failure to state a fact under circumstances in which it would have been natural to do so. If the defendant does not want to face this standard trial practice, he should decline to testify.
447 U.S. 231, 100 S. Ct. 2124 (1980)