with whom
Justice Marshall and Justice Blackmun join, dissenting.Today the Court holds that a prosecutor may comment on a defendant’s postarrest silence in an attempt to impeach his credibility without thereby violating the rule of Doyle v. Ohio, 426 U. S. 610 (1976). The Court arrives at this surprising conclusion only by confusing the question whether a Doyle violation occurred with the question whether that violation was harmless beyond a reasonable doubt. The holding is remarkable not only because it radically departs from the settled practice of the lower courts, but also because it is founded on a point conceded below and not raised here.
Until today, the common understanding of “our opinion in Doyle v. Ohio . . . [was that it] shields from comment by a prosecutor a defendant’s silence after receiving Miranda warnings.” Wainwright v. Greenfield, 474 U. S. 284, 296 (1986) (Rehnquist, J., concurring in result) (emphasis *770added). Accordingly, a defendant has been able to establish a Doyle violation simply by showing that the prosecutor “‘call[ed] attention to’” the defendant’s postarrest silence. Doyle, supra, at 619 (citation omitted). “The standard is strict; virtually any description of a defendant’s silence following arrest and a Miranda warning will constitute a Doyle violation.” United States v. Shaw, 701 F. 2d 367, 382 (CA5 1983); see, e. g., Passman v. Blackburn, 797 F. 2d 1335, 1346 (CA5 1986) (citing Shaw); United States v. Rosenthal, 793 F. 2d 1214, 1243 (CA11 1986) (same); United States v. Elkins, 774 F. 2d 530, 537 (CA1 1985) (Doyle is “strictly applied so that any description of defendant’s silence following arrest and Miranda warning . . . constitutes a violation of the Due Process Clause”); Webb v. Blackburn, 773 F. 2d 646, 648 (CA5 1985) (“Doyle . . . proclaimed a general rule that the prosecution cannot comment on an accused’s post-arrest silence”); United States v. Remigio, 767 F. 2d 730, 734 (CA10 1985) (“[T]his Circuit has consistently held that comments by prosecutors on an accused’s silence were plain, fundamental error”) (citations omitted). In light of this authority and the prosecutor’s “clear-cut” attempt to use the defendant’s post-arrest silence to impeach his credibility, United States ex rel. Miller v. Greer, 789 F. 2d 438, 447 (CA7 1986), it is not surprising that the five other courts that examined this case found a Doyle violation.
To support its decision that no Doyle violation occurred in this case, the Court argues in effect that a single comment cannot be sufficient to constitute a Doyle violation. A single comment, the Court suggests, does not amount to the “use” of a defendant’s silence for impeachment purposes, and is not equivalent to an “inquiry or argument respecting the defendant’s post-Miranda silence.” Ante, at 764. What the Court overlooks, however, is the fact that a single comment is all the prosecutor needs to notify the jury that the defendant did not “tell his story” promptly after his arrest. Although silence at the time of arrest is “insolubly ambiguous” and may be “consistent with ... an exculpatory explanation,” Doyle, *771supra, at 617, 618, and n. 8, nevertheless “the jury is likely to draw” a “strong negative inference” from the fact of a defendant’s postarrest silence. United States v. Hale, 422 U. S. 171, 180 (1975). Thus, as the lower courts have consistently found, a prosecutor may in a single comment effectively use a defendant’s postarrest silence to impeach his or her credibility. See, e. g., United States v. Remigio, supra, at 734-735.
The Court also notes that the trial court sustained defendant’s objection to the prosecutor’s improper question, and that the court later instructed the jury to disregard all questions to which an objection had been sustained. These actions minimized the harm this particular comment might have caused, the Court implies, and also distinguish this case from previous cases in which this Court has applied Doyle. Ante, at 764. In the case on which Doyle was squarely based, however, the Court reversed a conviction because of improper questioning regarding post-Miranda silence even though the jury was immediately instructed to disregard that questioning. See United States v. Hale, supra, at 175, n. 3. Moreover, the lower courts have routinely addressed similar situations, and in no case in which the prosecutor has commented on the defendant’s silence have these courts found contemporaneous objections or curative instructions sufficient automatically to preclude finding a Doyle violation. Instead, the Courts of Appeals have examined the comment in context, and considered it along with the weight of the evidence against the defendant and the importance of the defendant’s credibility to the defense, in determining whether a Doyle violation was harmless beyond a reasonable doubt.1 “In no case has a prompt and forceful instruction alone been held sufficient to vitiate the use of post-arrest silence.” Morgan v. Hall, 569 F. 2d 1161, 1167-1168 (CA1 1978) (emphasis *772added) (citing cases); see also United States v. Elkins, supra, at 534 (instruction that defendant’s silence is not evidence of guilt is not enough to cure Doyle violations); United States v. Remigio, supra, at 735 (finding “no merit” in Government’s argument that timely objection and cautionary instruction were enough to cure single comment by prosecutor in violation of Doyle)] United States v. Johnson, 558 F. 2d 1225, 1230 (CA5 1977) (“Though the trial court instructed the jury not to consider that remark, the testimony was so prejudicial that a simple instruction cannot cure it”).
The approach taken by the lower courts reflects both the serious impact of Doyle violations on the fairness of a trial, and the inherent difficulty in undoing the harm that they cause. With respect to their impact, more than one Circuit has recognized that “Doyle violations are rarely harmless.” Williams v. Zahradnick, 632 F. 2d 353, 364 (CA4 1980) (citing practice in the Fifth Circuit with approval). This is because “questions of guilt and credibility [are often] inextricably bound together,” Morgan v. Hall, supra, at 1168, and because comments upon a defendant’s failure to tell his or her story promptly after arrest may significantly undermine the defendant’s credibility in the jury’s eyes. This case illustrates the potential for harm. The only testimony the State offered that linked the defendant to the crime was that of an alleged accomplice. Jurors often give accomplice testimony reduced weight, particularly when the accomplice has received in return a promise of significant leniency.2 Here the State’s case depended entirely on whether the jury believed the defendant or the alleged accomplice. The pros*773ecutor’s second question on cross-examination — “Why didn’t you tell this story to anybody when you got arrested?”— thus struck directly at the heart of Miller’s defense: his credibility. If the rationale of Doyle is to have any force, defendants must be protected from such tactics.
Lower courts have also recognized that once the prosecutor calls attention to the defendant’s silence, the resultant harm is not easily cured. First, the jury is made aware of the fact of postarrest silence, and a foundation is laid for subsequent, more subtle attacks.3 Second, “curative” instructions themselves call attention to defendant’s silence, and may in some cases serve to exacerbate the harm. In a related context, involving a prosecutor’s statement calling attention to the defendant’s decision not to testify at trial, Justice Stevens has argued that “[i]t is unrealistic to assume that instructions on the right to silence always have a benign effect.” Lakeside v. Oregon, 435 U. S. 333, 347 (1978) (dissenting opinion).
“For the judge or prosecutor to call [the defendant’s failure to testify] to the jury’s attention has an undeniably adverse effect on the defendant. Even if jurors try *774faithfully to obey their instructions, the connection between silence and guilt is often too direct and too natural to be resisted. When the jurors have in fact overlooked it, telling them to ignore the defendant’s silence is like telling them not to think of a white bear.” Id., at 345.
Justice Simon of the Illinois Supreme Court has elaborated on this point:
“An improper inquiry by the prosecutor concerning the defendant’s post-arrest silence is not automatically remedied by a cautionary instruction. ... If [it were], the prosecutor would have little incentive to avoid such inquiries on cross-examination of the defendant; he could safely inform the jury of the defendant’s post-arrest silence, risking only an objection by the defendant’s counsel and a cautionary instruction by the trial court. A cautionary instruction is at best only a partial remedy. . . . The instruction may confuse the jury; or the jury may disregard it and use the defendant’s silence against him anyway. In a close case like this one, based wholly upon accomplice testimony and circumstantial evidence, the reference to post-arrest silence can work extreme prejudice against the defendant, notwithstanding a cautionary instruction.” People v. Miller, 96 Ill. 2d 385, 398, 450 N. E. 2d 322, 328 (1983) (dissenting opinion).
Courts below have therefore considered prompt objections and curative instructions relevant to the question whether a comment on a defendant’s silence is harmless error, but irrelevant to the question whether the comment violates Doyle. The Court today confuses the two inquiries, and thereby eliminates much of the protection afforded by Doyle.
Today’s radical departure from established practice is particularly inappropriate because this ground for decision was not presented either to the courts below or to this Court. The State “eoncede[d]” in the Court of Appeals that “any comment referring to [defendant’s] silence after that arrest *775[for murder] would be improper.” 789 F. 2d, at 442.4 It sought review in this Court not of the question whether a Doyle violation occurred, but whether, assuming the existence of a Doyle violation, the standard for appellate review should be more lenient than harmless error.5 The question decided today was therefore not “fairly included in the question presented for review.” Ante, at 761, n. 3. Moreover, the Court’s contention, ibid., that this question was argued in the briefs appears to me simply mistaken.6 The Court has overturned the judgment below, and upset the settled practice of the lower courts, on a point which the State conceded below and did not raise here, and on which respondent has had no opportunity to be heard.
Today’s decision saps Doyle of much of its vitality. I would adhere to Doyle's principles, and to the established practice of the lower courts. I dissent.
See, e. g., Matire v. Wainwright, 811 F. 2d 1430, 1436-1437 (CA11 1987); United States v. Harrold, 796 F. 2d 1275, 1280 (CA10 1986); United States v. Elkins, 774 F. 2d 530, 535-540 (CA1 1985); United States v. Shaw, 701 F. 2d 367, 382-384 (CA5 1983) (discussing cases).
Although the accomplice, Randy Williams, admitted shooting the victim, the State dropped charges of murder, aggravated kidnaping, and robbery, and agreed to a sentence of two years’ probation, in return for his testimony. United States ex rel. Miller v. Greer, 789 F. 2d 438, 440, 446, n. 7 (CA7 1986). Respondent Miller was sentenced to 80 years for murder, 30 years for aggravated kidnaping, and 7 years for robbery. Id., at 441. The jury was aware that a “deal” between the State and Williams had been struck. App. 45-46.
For example, the prosecutor clearly got full mileage out of his Doyle violation during closing argument. He was able to exploit the jury’s awareness of defendant’s postarrest silence by stressing that the accomplice’s testimony was credible precisely because he had not remained silent after arrest:
“We made a deal, if you want to call it that, with a guy [the accomplice] who’s willing to tell the truth, a man who told the truth of his involvement on February 10, 1980 [the day after the crime]. Sure, he was wrong in details; sure, he left some things out; sure, his statement is confusing; sure, he lied at that time about not being with his brother as they left the Regulator Tavern at first, but he was in custody only a few hours. He was charged with murder. . He knew they had him, cold turkey, but he told them a story, as they call it, an account, as I call it, shortly after his arrest, factually corroborated by an independent investigator. So if you call that a deal, put that aside. The question is, deal or no deal, did Randy tell you the truth. It really boils down to, who told you the story here and who told you the truth? You either believe Randy Williams or you believe ‘Chuck’ Miller. That is your choice. It’s as simple as that.” Ibid.
In the Court of Appeals, the State argued against a finding of a Doyle violation solely on the ground that “the prosecutor’s reference to Miller’s postarrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon.” 789 F. 2d, at 442.
The sole question presented is explicitly premised on a finding of a Doyle violation: “Whether, when considering violations of Doyle v. Ohio in federal habeas corpus proceedings, the standard of review should be whether the error substantially affected the course of the trial rather than whether the error was harmless beyond a reasonable doubt.” Pet. for Cert. i (emphasis added).
Although one sentence in petitioner’s brief refers to “an attempted violation of the rule of Doyle,” Brief for Petitioner 16, the brief contains no other reference, direct or indirect, to the argument the Court develops today. One “casual reference ... in the midst of an unrelated argument, is insufficient to inform a . . . court that it has been presented with a claim.” Board of Directors of Rotary International v. Rotary Club, 481 U. S. 537, 550, n. 9 (1987). Apart from making what is at best a casual reference to the Court’s argument, petitioner’s brief is devoted to discussion of the question it presented — whether the standard of harmless error is appropriate for Doyle violations. Not surprisingly, there is no discussion of the Court’s argument in respondent’s brief.