specially concurring:
I agree that the failure of the trial court to consider the jury’s request to hear the defendant’s testimony in the erroneous belief that it did not have discretion to do so requires remand for a new trial. I cannot, however, concur in the majority opinion insofar as it treats defendant’s other claim of error arising out of his cross-examination and the comments of the State’s Attorney in final argument. If the opinion stands for the proposition that the objection was not sufficiently specific to preserve the alleged error, then of course the remainder of the discussion is dictum. To so hold, however, would require us to ignore the fact that defendant moved for a mistrial on the same grounds that are here urged for reversal. Whether necessary to the opinion or dictum, I must respectfully point out that the conclusion reached is clearly erroneous.
I must confess that I find it difficult to understand the reasoning by which the opinion concludes that “we do not have the question presented of the right of the accused to remain silent.” There is not one word of testimony by the arresting officers that defendant told them anything concerning the commission of the offense, and the majority’s conclusion as to the reason for the prosecutor’s failure to ask the witnesses what, if anything, the defendant said is based on pure conjecture. Furthermore, a review of the authorities demonstrates that the “sensible” observation of the trial court to which the opinion alludes resulted in prejudicial reversible error.
It would perhaps be advisable at this point to describe the posture in which this case came before us. In his brief defendant contends that he had an absolute fifth-amendment right to remain silent while in police custody and that the admission of testimony that he did not, prior to trial, tell his story to the police, aggravated by the State’s Attorney’s comments, resulted in reversible error. In their brief the People argue that “when a defendant chooses to take the stand, he is no longer protected from cross-examination,” and that “The logic behind this question was that with such an incredible, yet perhaps exculpatory explanation for his actions, the defendant’s failure to relate the story before trial or at his arrest may genuinely reflect on its authenticity.” Admitting that “it is improper for the prosecution in its case in chief to comment on the defendant’s silence after arrest or at trial” they argue that in this instance “what cannot be introduced originally by the State may be used as a truth-testing device if the defendant later takes the stand.”
It should be noted that the majority cites no authority in support of its conclusion, and the only conceivable rationale for its holding is stated by Professor Wigmore (3A Wigmore, Evidence, sec. 1042, at 1056 (Chadboum rev. ed. 1970)) as follows:
“A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. This is conceded as a general principle of evidence (sec. 1071 infra). There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is ‘prima facie’ an inconsistency.”
This rationale can only apply if silence, under the circumstances, is an “inconsistency” and this court has long recognized that there are valid reasons for maintaining silence and that silence maintained under appropriate circumstances is not an inconsistency which may be shown in impeachment of later testimony. In People v. Pfanschmidt, 262 Ill. 411, holding that it was reversible error to permit cross-examination concerning the defendant’s failure to reply to an accusation, the court said:
“An admission or confession may be implied from the conduct of the party when charged with a crime or with complicity therein, or when statements are made in his presence affecting him, when the circumstances afford him an opportunity to act or speak in reply and men similarly situated would naturally deny the implied guilt or make explanations or statements. *** If the accused is restrained from making a reply ‘by fear, by doubts of his rights, by a belief that his security will best be promoted by his silence, then no inference of assent can be drawn from that silence. ’ (Commonwealth v. Kenney, 53 Mass. 235.) If the accused says he refuses to answer because he is acting under the advice of counsel, or for any other valid reason, the evidence should not be admitted. *** There is no basis in this record to support an argument that plaintiff in error in any manner acquiesced in the truth of the statements or assertions made in his presence in these various interviews. Would any reasonable man in like circumstances, when he had been advised by his attorney time and again not to talk, be expected to reply to accusations of the kind made in these interviews? Manifestly not.” 262 Ill. 411, at 448-450.
Our later cases have consistently held that evidence of silence maintained upon advice of counsel is not admissible. See People v. Blumenfeld, 330 Ill. 474, 491-492; People v. Rothe, 358 Ill. 52, 57; People v. Lewerenz, 24 Ill.2d 295, 299.
In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the Supreme Court said:
“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” (Miranda v. Arizona, 384 U.S. 436, 468 n.37, 16 L. Ed. 2d 694, 720 n.37, 86 S. Ct. 1602, 1625 n.37.)
This language permits of no construction other than that an accused, in custody, has an absolute right to silence. In view of the fact that maintaining silence upon advice of counsel is not an inconsistency which may be shown in impeachment, I fail to perceive in what manner the maintenance of silence in exercise of the constitutional right defined in Miranda may be so construed. To hold otherwise would obviate the rights of an accused to maintain silence and would present him with the Hobson’s choice so dramatically demonstrated in Fowle v. United States (9th Cir. 1969), 410 F.2d 48, where in rejecting the contention which the People make here the court said:
“We simply cannot adopt an interpretation of the Fifth Amendment under which one exercising his right to remain silent upon and immediately after his arrest — a right which the Supreme Court has so earnestly sought to guarantee and preserve — is severely prejudiced by his recourse to that cherished right. It would be anomalous indeed if honorable law enforcement officers were required to elaborate upon the traditional fifth amendment warning and advise arrested persons, in effect: If you say anything, it may be used against you. You have the constitutional right to remain silent, but if you exercise it, that fact may be used against you.” 410 F.2d 48, at 54.
I agree with the statement of the Court of Appeals in Johnson v. Patterson (10th Cir.), 475 F.2d 1066, cert. denied (1973), 414 U.S. 878, 38 L. Ed. 2d 124, 94 S. Ct. 64, that:
“When a defendant makes a statement at trial which is inconsistent with an earlier statement his credibility is clearly in question. This rationale does not follow with silence at the time of arrest. *** silence at the time of arrest is not an inconsistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons must enjoy without qualification.” 475 F.2d 1066, at 1068.
Nor, in order to exclude the evidence of the accused’s prior silence, is it necessary that he testify, as was done in Pfanschmidt and Blumenfeld, concerning the reasons for his silence. The vice inherent in such a requirement is clearly demonstrated in Fowle wherein the court said:
“The Government urges that since Fowle chose to testify in his own defense, he must incur the ‘cost’ of impeaching proof that he had earlier exercised his constitutional right to remain silent. But adopting the Government’s position would require Fowle to bear a significant cost for his initial reliance upon the Fifth Amendment no matter what path he chooses at trial. If Fowle should have foregone his right to testify, that choice would undoubtedly prejudice his interests severely. The Supreme Court has acknowledged this rather evident fact, declaring that it is psychologically impossible for a jury not to apply adverse inferences against a defendant who fails to testify in his own behalf. See Bruno v. United States, 308 U.S. 287, 60 S. Ct. 198, 84 L. Ed. 257 (1939). If, on the other hand, Fowle testifies, as he did, his compelled admission that he remained silent when arrested is no less damaging to him on the ultimate issue of guilt. It is not likely that all jurors would find it psychologically possible to restrict the application of such proof to the narrow purpose for its admission — impeachment — notwithstanding the adequacy of jury instructions given by a careful trial judge. See United States v. Grunewald, 233 F.2d 556, 572 (2d Cir. 1956) (Frank, J., dissenting), rev’d, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931, 62 A.L.R.2d 1344 (1957).” 410 F.2d 48, at 54.
The weight of authority holds that it is prejudicial error to adduce testimony, or in argument to allude to the fact, that an accused exercised his fifth-amendment right to remain silent. Two of our sister States which previously held to the contrary are now in accord with the better rule. People v. Bobo (1973), 390 Mich. 355, 212 N.W.2d 190; Hines v. People (Colo. 1972), 497 P.2d 1258; see also State v. Stephens (1970), 24 Ohio St. 2d 76, 263 N.E.2d 773; Fagundes v. United States (1st Cir. 1965), 340 F.2d 673; Johnson v. Patterson (10th Cir.), 475 F.2d 1066, cert. denied (1973), 414 U.S. 878, 38 L. Ed. 2d 124, 94 S. Ct. 64; 87 Harv. L. Rev. 882 (1974); Fowle v. United States (9th Cir. 1969), 410 F.2d 48; State v. Greer (1972), 17 Ariz. App. 162, 496 P.2d 152; State v. Shing (1973), 109 Ariz. 361, 509 P.2d 698; State v. Griffin (1972), 120 N.J. Super. 13, 293 A.2d 217; United States ex rel. Young v. Follette (S.D.N.Y. 1970), 308 F. Supp. 670; Deats v. Rodriguez (10th Cir. 1973), 477 F.2d 1023; United States v. Nolan (10th Cir. 1969), 416 F.2d 588; United States v. Arnold (10th Cir. 1970), 425 F.2d 204.
As stated in Johnson v. Patterson (10th Cir. 1973), 475 F.2d 1066, 1068, “It would indeed be irregular and anomalous to warn an accused that he has the right to remain silent, that if he says anything it may be used against him, however, if he does remain silent that too may be used against him. See McCarthy v. United States, 6 Cir., 25 F.2d 298; United States v. Brinson, 6 Cir., 411 F.2d 1057; Fowle v. United States, 9 Cir., 410 F.2d 48. This would be the practical effect of allowing the prosecution to use at trial the fact that an accused remained silent, clearly making the assertion of the constitutional right costly.”