dissenting.
I respectfully dissent.
In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), the Supreme Court held that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” (Emphasis added). The majority today has misconstrued and misapplied the Doyle rationale in affording due process protection to Eric Weir’s silence on the facts of this case. I believe the majority’s view is so plainly at odds with Supreme Court authority1 that we are foreclosed from taking such a position.
I.
The crux of this case can most simply be described as balancing two important elements of our criminal justice system — full factual disclosure in order to ascertain the truth and due process of law. The former is indeed a crucial concern.
The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.
United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Likewise, prosecutorial crossexamination plays a critical role in the development of facts and the search for truth.2 Yet, in *1134Doyle the Supreme Court found that due process barred prosecutorial inquiry into a defendant’s silence at the time of his arrest.
The Supreme Court had two grounds for its Doyle holding, both intimately related to the fact that the police had given Miranda warnings to the defendants at the time of their arrest. The Court first found that once Miranda warnings had been given a defendant’s silence became “insolubly ambiguous” thereby precluding the jury’s use of such silence to discredit an exculpatory story offered at trial. In so ruling, a majority of the Court observed that “[sjilence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda warnings.” Doyle, supra, 426 U.S. at 617, 96 S.Ct. at 2244.
Second, the Court stated that it would be “fundamentally unfair” to use a defendant’s silence to impeach an explanation offered at trial, after being impliedly assured by express Miranda warnings that silence would carry no penalty. Id., at 618, 96 S.Ct. at 2245. Implicit in this rationale is an apparent apprehension that Miranda warnings could be employed, either deliberately or innocently, to induce silence which is later used to impeach the defendant at trial. Thus, express Miranda warnings block future inquiry into silence in order to protect an individual from the fundamental unfairness of contrived impeachment evidence.
II.
This case does not involve the type of “fundamental unfairness” found in Doyle, where explicit Miranda warnings induced the defendant to remain silent and promised his silence would be respected.3 There is no evidence that Miranda warnings were ever given to Eric Weir. Weir’s arrest, without evidence of some other improper police tactics, was not in itself fundamentally unfair; the police were under no obligation to give Miranda warnings until they began the process of interrogation. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). See also People v. Conyers, 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342, 350 (1980) (Meyer, J., dissenting), summarily vacated, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980). Nor, once Weir had taken the stand, was it unfair for the prosecutor to cross-examine him as to his activities after the stabbing.
If [a defendant] takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness .... “[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.”
Brown v. United States, 356 U.S. 148, 154-55, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958) (quoting Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 948, 44 L.Ed. 1078 (1900)). See also Doyle, supra, 426 *1135U.S. at 625-26, 96 S.Ct. at 2248 (Stevens, J., dissenting).
The majority broadly asserts that because of “widespread knowledge in society” about the Fifth Amendment privilege, “many if not most persons under arrest know of their right to remain silent and exercise that right.” Ante at p. 1131. As much might as easily be said of silence before arrest, or at any other time, for that matter. This is of course inconsistent with the underlying premise of Miranda that most citizens do not know their constitutional rights and must be informed of them.4 It directly contradicts the observation in Jenkins that “[I]n the absence of an express assertion of the privilege [against self-incrimination], the presumption is that the privilege was not exercised.” Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 2133 n.9, 65 L.Ed.2d 86 (1980) (Stevens, J., concurring). In Roberts v. United States, 445 U.S. 552, 559-60, 100 S.Ct. 1358, 1364-65, 63 L.Ed.2d 622 (1980), the Supreme Court stated with telling clarity:
The Fifth Amendment privilege against compelled self-incrimination is not self-executing .... Miranda’s requirement of specific warnings creates a limited exception to the rule that the privilege must be claimed .... (Emphasis added).
In my view, the majority’s approach here is precisely what persuaded the Supreme Court to vacate Conyers, supra. It invites innumerable occasions where the truth-seeking function of the criminal trial process will be impeded, without protecting an individual’s constitutional rights. The price for such speculative gains is simply too great. In the words of Justice Frankfurter, it makes “of the Fifth Amendment not only a human safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Brown, supra, 356 U.S. at 156, 78 S.Ct. at 627. The majority points to the fact of arrest as “governmental action which implicitly induces a defendant to remain silent.” Ante at p. 1131. The fact of arrest alone, however, is no substitute for evidence of reliance on a constitutional right which is necessary to rebut the presumption, applicable in this case, “that the privilege was not exercised.” Jenkins, supra, 100 S.Ct. at 2133 n.9.
The majority seemingly concludes that post-arrest silence has no probative value, but as Judge Lambros observes in his concurring opinion, even Doyle recognizes that in certain circumstances, post-arrest silence can be used to impeach a defendant. See Doyle, supra, 426 U.S. at 619-20 n.ll, 96 S.Ct. at 2245 n.ll. Further, Justice Stevens acknowledged that “under accepted rules of evidence, ... [a defendant’s] silence . . . [can be] tantamount to a prior inconsistent statement and admissible for purposes of impeachment.” Id., at 622, 96 S.Ct. at 2246. In Charles v. Anderson, 610 F.2d 417, 420 (6th Cir. 1979), rev’d per curiam, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), this court recognized that post-arrest silence may sometimes be probative:
We begin with the proposition that Doyle does not prohibit every impeachment use of a defendant’s post-arrest silence, but only those which are fundamentally unfair.
Nor does the majority’s conclusion square with the precedent upon which it purports to rely, United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). In Hale, the defendant was arrested for robbery, taken to the police station, and given his Miranda warnings. However, he refused to make a statement. The defendant took the stand at his trial and offered an alibi defense. The prosecutor cross-examined the defendant regarding his post-arrest silence. In ruling on the propriety of the prosecutor’s inquiry as a matter of federal evidentiary law, the Supreme Court recognized:
Silence gains more probative weight where it persists in the face of accusation, *1136since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion.
Id., at 176, 95 S.Ct. at 2136. The Court had previously noted, “If the Government fails to establish a threshold inconsistency between silence at the police station and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded.” Id. The Court refused to find an inconsistency in Hale because:
[T]he situation of an arrestee is very different, for he is under no duty to speak and, as in this case, has ordinarily been advised by government authorities only moments earlier that he has the right to remain silent ....
Id. (emphasis added). Unlike the situation in Hale, Weir was not advised of this right.
It is indeed difficult to discern why as a practical matter, the precise moment of arrest must automatically make any silence lose all probity of the truth of a defendant’s exculpatory story. While Doyle holds that the administration of Miranda rights makes the accused’s subsequent silence “insolubly ambiguous,” it has always seemed to me at least that the more persuasive reason is that while the silence may still be probative, its value is diminished and at that point is outweighed by the need to protect the integrity of the promise made by the administration of the warnings.
The majority asserts that failure to extend Doyle will penalize those defendants who already know their constitutional rights, even without Miranda warnings. Ante at p. 1132. I do not view the rule as a penalty; it simply fails to provide a shield because there is no adequate reason for it. If the defendant elects to testify, he may still explain that his silence was premised on the exercise of the right. That is not a shocking confession of guilt; indeed many jurors may well be in complete sympathy with such conduct and find it utterly logical. It is basically no different from any other fact concerning which he may testify. I see no harm in letting the jury weigh that circumstance with all the others.
The same logic also dispels the notion that the police may deliberately withhold Miranda warnings so as to preserve the opportunity to use silence for impeachment purposes. Perhaps so, but if they do, it may be at the risk of a good opportunity to get a valid confession, and their well laid plans, assuming they are astute enough to formulate them, will be frustrated if the accused never takes the stand. Most state courts have the same power to prohibit such inquiry as is vested in federal courts by Rule 403 of the Federal Rules of Evidence; 5 if not, the defendant always has the therapeutic safeguard of explaining his silence on the stand. In any case, the Supreme Court has noted:
The impeachment process . . . undoubtedly provide[s] valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby.
Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971).
The majority’s approach here is strikingly similar to the rationale articulated by the majority in Conyers, supra. I subscribe generally to the view expressed by Judge *1137Meyer in his dissent in that case. The per se rule articulated today by the majority was rejected by the Supreme Court when it summarily vacated the state court’s decision in Conyers. It has been rejected primarily because it places an unjustified and unnecessary burden upon the truth-seeking process.
Even if I were to agree with the majority’s view, I would conceive myself obliged to reverse, noting my obedience to the prevailing Supreme Court authority while expressing my disagreement with it. I see nothing wrong with such an approach. This is how the law moves. This in my view would have been a far more appropriate response than that made by the majority today.
. See People v. Conyers, 49 N.Y.2d 174, 179, 424 N.Y.S.2d 402, 400 N.E.2d 342 (1980), summarily vacated, New York v. Conyers, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); and Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).
. In Doyle v. Ohio, 426 U.S. 610, 617 n.7, 96 S.Ct. 2240, 2244 n.7, 49 L.Ed.2d 91, the Supreme Court stated:
*1134We recognize, of course, that unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge.
See also, 426 U.S. at 628-30 and n.8, 96 S.Ct. at 2249-50 and n.8 (Stevens, J., dissenting). In Jenkins, supra, 100 S.Ct. at 2129 (1980), quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958), the Supreme Court stated:
Once a defendant decides to testify “[t]he interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant, and prevail in the balance of the considerations determining the scope and limits of the privilege against self-incrimination.”
. In Jenkins, supra, 100 S.Ct. at 2130, Justice Powell, who also authored Doyle, stated:
Only in Doyle . . . did we find that impeachment by silence violated the Constitution. In that case a defendant received the warnings required by Miranda .... In this case, no governmental action induced petitioner to remain silent before the petitioner was taken into custody and given Miranda warnings. (Emphasis added).
And in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 2181, 65 L.Ed.2d 222 (1980), the Supreme Court stated, “In Doyle, we held that the Due Process Clause prohibits impeachment on the basis of a defendant’s silence following Miranda warnings.”
. “[W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.” Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966). Arguably, the eventual conclusion to be drawn from the majority’s rationale is that Miranda's therapeutic rule is no longer needed.
. Such relief in federal prosecutions is specifically afforded by Federal Rule of Evidence 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Particular circumstances may require, as a matter of fundamental fairness and hence of due process that evidence of a defendant’s post-arrest silence be excluded. It is necessary for our purposes here, however, only to observe that the fact of arrest itself does not trigger the fundamental fairness bar.