concurs in part and dissents in part.
I concur in the Court’s opinion, but dissent from Part III. The Court has permitted the evidence concerning Moore’s failure to meet Detective Mack to be admitted in the State’s case-in-chief to prove flight. In so doing, the Court has created a large exception to the general rule it states here, that pre-arrest, pr e-Miranda warning silence can be used only to impeach a defendant who has testified at trial. Such an exception goes beyond what the United States Supreme Court precedents permit. The Supreme Court has permitted pre-arrest, pre-Miranda warning silence to be used only to impeach a defendant’s exculpatory trial testimony. Brecht v. Abrahamson, supra; Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129-30, 65 L.Ed.2d 86 (1980). The majority here has permitted evidence to come in, not to impeach, but as part of the case-in-chief.
The Court’s opinion states “[t]he constitutional right against self-incrimination is not absolute, however, and applies only when the silence is used solely for the purpose of implying guilt.” The majority opinion does not cite any authority for this proposition. The Ninth Circuit noted that whether evidence of pre-arrest, pr e-Miranda silence can be used for purposes other than impeachment has not been addressed by the United States Supreme Court. United States v. Thompson, 82 F.3d 849, 854-55 (9th Cir.1996).
The Court’s opinion cites cases from the Fifth, Eleventh and District of Columbia federal circuits for the proposition that these circuits have admitted evidence of the defendant’s pre-arrest, pr e-Miranda silence for purposes other than impeachment. This authority is not persuasive. In United States v. Butler, 924 F.2d 1124 (D.C.Cir.1991), the court allowed evidence of pre-Miranda silence to be admitted after the defendant had testified. Essentially, this evidence was used to impeach the defendant. Id. at 1129. In United States v. Zanabria, 74 F.3d 590 (5th Cir.1996), the Fifth Circuit stated that prearrest, pre-Miranda silence is not protected under the Fifth Amendment because the Fifth Amendment only protects against compelled incrimination and silence is not com*826pelled, but makes this assertion without any analysis or citation to any authority. Id. at 593. The Circuit’s conclusion was criticized in State v. Easter, 130 Wash.2d 228, 922 P.2d 1285, 1291 (Wash.1996). In the Eleventh Circuit, the court relied upon Jenkins to allow pre-arrest, pre-Miranda silence to be introduced in the prosecution’s ease-in-chief. United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991). However, as noted by the Washington Supreme Court in State v. Easter, 130 Wash.2d 228, 922 P.2d 1285 (Wash.1996), a case cited by the majority, Jenkins stands for the proposition that the evidence of silence can be used to impeach the defendant, a different purpose than allowing the evidence to be used in the prosecution’s casein-chief. Easter, 922 P.2d at 1291.
The Court’s opinion cites several decisions from state supreme courts which have held that use of pr e-Miranda silence to imply guilt violates the defendant’s right to remain silent. These eases have only allowed prearrest, pr e-Miranda silence to be used for purposes of impeachment. In Easter, the Washington Supreme Court stated, “The cases that have permitted testimony about the defendant’s silence have done so only for the limited purpose of impeachment after the defendant has taken the stand, and not as substantive evidence of guilt when the defendant has not testified.” Easter, 922 P.2d at 1289. In Easter, the prosecution argued that the evidence of silence was admissible because it went to the defendant’s credibility and as to why he was acting as he was. The Easter Court rejected this argument, stating that the defendant had not testified and therefore, use of the silence for impeachment purposes was not an issue. Id. at 1290.
In summary, I conclude from all the authorities cited in the Court’s opinion that to allow evidence of the defendant’s pre-arrest, pre-Miranda silence for purposes other than impeachment exceeds the scope of any of the persuasive authority cited.
I further dispute the majority’s conclusion that this evidence “was probative on the issue of flight and was admitted for that purpose and not directly as an admission of guilt ____” The flight evidence was introduced in this case to demonstrate consciousness of guilt. In closing argument the prosecutor stated: “Is it evidence of flight and consciousness of guilt to just pack up and hightail it out of here? Of course it is.” Although consciousness of guilt is not identical to an admission of guilt, the admission of evidence concerning Moore’s failure to meet with the detective uses the proper exercise of Moore’s Fifth Amendment right as a means of implying guilt.
Additionally, allowing the prosecution to use pre-Miranda silence in its case-in-chief invites abuse of the Fifth Amendment right against self-incrimination. As the Easter Court stated:
The purpose of the right [against self incrimination] is to make the government obtain evidence on its own, and ‘to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.’ Doe v. United States, 487 U.S. 201, 213, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). The right exists to put the entire load of producing incrimination evidence on the State ‘by its own independent labors.’ Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Easter, 922 P.2d at 1292. This proposition was also summarized by the Utah Court of Appeals in State v. Palmer:
Any time an individual is questioned by the police, that individual is compelled to do one of two things — either speak or remain silent. If both a person’s prearrest speech and silence may be used against that person, ..., that person has no choice that will prevent self-incrimination.
State v. Palmer, 860 P.2d 339, 349 (Utah Ct.App.1993) (quoting State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703, 711 (Wis.1982)).
For the foregoing reasons, I therefore respectfully dissent from the Court’s conclusion that the evidence of Moore’s failure to meet with Detective Mack was properly admitted, and would vacate and remand for a new trial.
SCHROEDER, J., concurs in dissent.