cross examination should have been excluded because its probative value on the issue of credibility was so negligible that it was outweighed by its possible impermissible impact on the jury. The High Court ruled that Halpern's silence was not sufficiently inconsistent to justify its use for impeachment. The majority specifically declined to overrule Raffel.
Taking Raffel and Grunewald together, it would appear that there might be some circumstances under which "silence", in a Fifth Amendment context, could be used to impeace a witness-defendant, however, such silence must at least be inconsistent with trial testimony of the witness-defendant.
Admittedly, interpreting the consistency or inconsistency of silence is a highly speculative venture. On the basis of an evidentiary evaluation of the transcript, this court can not say that petitioner's custodial silence was inconsistent with his trial version of an accidental shooting. His silence may fairly be construed as reliance on his constitutional rights which is consistent with a subsequent assertion of innocence. See Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965).
Finally, the reliance of this court on Miranda v. Arizona, supra, is not, as suggested by the State, misplaced in light of Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).
In Harris, defendant was charged with twice selling heroin to an undercover agent. On cross examination defendant was questioned about statements made to the police. These uncounseled statements were taken in violation of Miranda, and tended to contradict his previous testimony. The trial judge permitted the cross examination and instructed the jury that the statements could be considered only in passing on defendant's credibility. The Supreme Court affirmed and held that though the earlier conflicting statements were inadmissible to establish the prosecution's case-in-chief under Miranda, they could be used to impeach his credibility:
"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege can not be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77 [90 S. Ct. 363, 24 L. Ed. 2d 275] (1969); cf. Dennis v. United States, 384 U.S. 855 [86 S. Ct. 1840, 16 L. Ed. 2d 973] (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment." 401 U.S. at 225, 91 S. Ct. at 646.