State v. Osborne

William B. Brown, J.,

concurring. The rationale behind the opinion in Doyle v. Ohio (1976), 426 U. S. 610, 49 L. Ed. 2d 91, is that defendants have the right to be given Miranda warnings, that those warnings make it clear that they have the right to be silent, and that, since “silence in the wake of these warnings, may be nothing more than the arrestee’s exercise of these Miranda rights,” ( Doyle, at page 97) a defendant cannot be impeached with that silence when he introduces exculpatory testimony for the first time at trial. The majority opinion implies that “garrulousness” in general may be sufficient to prevent the application of Doyle to subjects about which the defendant has been silent. By doing so, it imposes a duty on a defendant to be silent on' all matters concerning the crime once he . is read his Miranda warnings if he is to take advantage of the Doyle holding. There is nothing in. .the Doyle opinion to support the majority’s interpretation. Since, however, the defendant in the instant cause failed to object to being impeached with his silence, and since I feel that his failure to object outweighs the possible prejudice, of the prosecution’s impeachment, I concur in the holding of the majority.