Fundamental to our adversary system ofjustice is the right to impeach the testimony of an opposition witness. This right extends to a criminal defendant who chooses to take the stand, for his veracity and credibility are in issue. Admission of prior silence as a means of impeaching the testimony of a witness was favored by a broad rule of evidence at common law. However, the existence of an inconsistency between the silence and later testimony was a necessary condition for the admission of the defendant's prior silence. While the courts have not defined the degree of inconsistency required to allow a prior statement to be used for impeachment purposes, the establishment of an inconsistency is a question of fact, dependent "on the individual circumstances, and in all of them the underlying test is, would it have been natural for the person to make the assertion in question?"
Calvin W. Colyer,
Constitutional Law-Due Process-Prosecution's Use of Accused's Silence for Impeachment Purposes Violates Fourteenth Amendment's Due Process Claus,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol11/iss3/11