author:
Justice Stevens
      Justice Rehnquist,

text:
    WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS v. GREENFIELD
    No. 84-1480.
    Argued November 13, 1985
    Decided January 14, 1986

      Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, and O’Connor, JJ., joined. Rehnquist, J., filed an opinion concurring in the result, in which Burger, C. J., joined, post, p. 296.

      Ann Garrison Paschall, Assistant Attorney General of Florida, argued the cause for petitioner. With her on the briefs was Jim Smith, Attorney General.

      James D. Whittemore, by appointment of the Court, 472 U. S. 1006, argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Charles S. Sims and Jack D. Novik; and for the Illinois Psychological Association by Donald Pauli and Marilyn Martin.

   Justice Stevens

delivered the opinion of the Court.

Respondent entered a plea of not guilty by reason of insanity to a charge of sexual battery. At his trial in the Circuit Court for Sarasota County, Florida, the prosecutor argued that respondent’s silence after receiving Miranda warnings was evidence of his sanity. The question presented is whether such use of a defendant’s silence violates the Due Process Clause of the Fourteenth Amendment as construed in Doyle v. Ohio, 426 U. S. 610 (1976).

HH

The battery occurred in woods near a beach in the vicinity of Sarasota, Florida. After respondent released his victim, she drove directly to the police station to report the incident. Based on her description, Officer Pilifant identified respondent on the beach and placed him under arrest about two hours after the assault occurred. After handcuffing him, the officer gave respondent the warnings required by our decision in Miranda v. Arizona, 384 U. S. 436, 467-473 (1966). Specifically, Officer Pilifant stated:

“You have a right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand each of these rights I have explained to you? Having these rights in mind do you wish to talk to us now?” App. 73.

Respondent replied by stating that he understood his rights and that he wanted to talk to an attorney before making any statement. The Miranda warnings were repeated by Officer Pilifant while driving to the police station and reiterated by Detective Jolley after they arrived at the station. Each time that respondent was asked “if he wished to give up the right to remain silent,” he declined, stating that he wanted to talk to an attorney. App. 77.

Under Florida law, when a defendant pleads not guilty by reason of insanity and when his evidence is sufficient to raise a reasonable doubt about his sanity, the State has the burden of proving sanity beyond a reasonable doubt. In his case in chief, the prosecutor introduced the testimony of Officer Pilifant and Detective Jolley. They described the occasions on which respondent had exercised his right to remain silent and had expressed a desire to consult counsel before answering any questions. Both officers repeated the several colloquies with respondent. In his defense, respondent did not testify, but two psychiatrists expressed the opinion that he was a paranoid schizophrenic who had been unable to distinguish right from wrong at the time of the alleged offense. In rebuttal, the prosecutor relied on a third psychiatrist who expressed a contrary opinion.

In his closing argument, over defense counsel’s objection, the prosecutor reviewed the testimony of Officer Pilifant and Detective Jolley and suggested that respondent’s repeated refusals to answer questions without first consulting an attorney demonstrated a degree of comprehension that was inconsistent with his claim of insanity. The jury found respondent guilty and the judge sentenced him to life imprisonment.

By a 2-to-l vote, the Florida Court of Appeal for the Second District affirmed the conviction. Greenfield v. State, 337 So. 2d 1021 (1976). After noting that “prosecutorial comment relating to a defendant’s insistence on his right to remain silent generally constitutes reversible error,” id., at 1022, the majority held that the general rule did not apply to a case in which an insanity plea had been filed. The dissenting judge suggested that the application of the general rule would not have prejudiced the prosecution because the “questions and answers could have been couched in such a manner as to permit the officer to convey to the jury the fact that the appellant carried on a perfectly rational conversation without specifically stating that he chose to avail himself of his right to remain silent.” Id., at 1023.

The Florida Supreme Court granted respondent’s petition for certiorari and summarily remanded the case to the Court of Appeal for reconsideration in light of Clark v. State, 363 So. 2d 331 (1978), a case in which it had held that improper comment on a defendant’s silence was constitutional error re viewable on appeal if an adequate contemporaneous objection was made either at the time the evidence was introduced or at the time of the prosecutor’s comment. Greenfield v. State, 364 So. 2d 885 (1978). On reconsideration, the Court of Appeal adhered to its earlier decision.

Having exhausted his state remedies, respondent filed a petition for a writ of habeas corpus in the Federal District Court. The petition was referred to a Magistrate. The State argued that the silence issue was barred because respondent’s counsel had failed to make an adequate objection. The Magistrate concluded that federal review of the claim was not foreclosed because counsel had objected to the prosecutor’s closing argument and because the Florida Court of Appeal had rejected the claim on its merits. The Magistrate, however, agreed with the Florida courts’ disposition of the merits and recommended that the habeas corpus petition be denied. The District Court accepted that recommendation.

The United States Court of Appeals for the Eleventh Circuit reversed. 741 F. 2d 329 (1984). Disagreeing with two other Federal Courts of Appeals — but not with the position taken by the Florida Supreme Court in a case decided after this respondent had exhausted his state remedies, see State v. Burwick, 442 So. 2d 944 (1983), cert. denied, 466 U. S. 931 (1984) — the Court of Appeals held that under the reasoning of Doyle v. Ohio, 426 U. S. 610 (1976), respondent was entitled to a new trial. We agree.

i — I I — I

In Doyle, the defendants had taken the witness stand and offered an exculpatory explanation for their participation in what the State’s evidence had portrayed as a routine marihuana transaction. On cross-examination the prosecutor impeached their testimony by asking them why they had not explained their conduct at the time of their arrest. The Court held that such cross-examination was fundamentally unfair and therefore violated the Due Process Clause of the Fourteenth Amendment.

The source of the unfairness was the implicit assurance contained in the Miranda warnings “that silence will carry no penalty.” The critical importance of the implied promise that is conveyed to an arrested person by the Miranda warnings has been repeatedly confirmed in subsequent decisions. Thus, in Fletcher v. Weir, 455 U. S. 603, 606 (1982), we explained:

“In Jenkins [v. Anderson, 447 U. S. 231 (1980)], as in other post-Doyle cases, we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him. In Roberts v. United States, 445 U. S. 552, 561 (1980), we observed that the postconviction, presentencing silence of the defendant did not resemble ‘postarrest silence that may be induced by the assurances contained in Miranda warnings.’ In Jenkins, we noted that the failure to speak involved in that case occurred before the defendant was taken into custody and was given his Miranda warnings, commenting that no governmental action induced the defendant to remain silent before his arrest. 447 U. S., at 239-240. Finally, in Anderson v. Charles, 447 U. S. 404, 407-408 (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because ‘Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.’”

Since Fletcher, moreover, we have continued to reiterate our view that Doyle rests on “the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.” South Dakota v. Neville, 459 U. S. 553, 565 (1983). Doyle and subsequent cases have thus made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires.

The Florida Attorney General argues that Doyle does not control this case because proof of sanity is significantly different from proof of the commission of the underlying offense, and that the Doyle due process rationale thus does not apply. At the outset, we note that, in this case, unlike Doyle and its progeny, the silence was used as affirmative proof in the case in chief, not as impeachment. The Florida Attorney General argues that an insanity defense should be viewed as an “affirmative defense,” and that the use of silence to overcome an insanity defense should thus be viewed as impeachment. Without accepting that argument, or its characterization of the insanity defense, we address the claim that the Doyle due process analysis should not prevent the use of post-Miranda warnings silence to overcome an insanity defense.

We find no warrant for the claimed distinction in the reasoning of Doyle and of subsequent cases. The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant’s plea of insanity. In both situations, the State gives warnings to protect constitutional rights and implicitly promises that any exercise of those rights will not be penalized. In both situations, the State then seeks to make use of the defendant’s exercise of those rights in obtaining his conviction. The implicit promise, the breach, and the consequent penalty are identical in both situations.

The Florida Attorney General argues, however, that introduction of the evidence of respondent’s -post-Miranda warnings silence no more violates the Constitution than did the reference to a defendant’s refusal to take a blood-alcohol test in South Dakota v. Neville, supra. In Neville, we rejected the due process challenge — and the attempt to rely on Doyle — because of the important differences between the refusal to take a blood-alcohol test and the post-Miranda warnings silence. We noted that, unlike the refusal to take an optional blood-alcohol test, the right of silence after Miranda warnings is of constitutional dimension. 459 U. S., at 565. We also noted that, unlike the state warning about the refusal to take the blood-alcohol test (which expressly advised Neville that his refusal could be used to deprive him of his driving privileges), Miranda warnings contain implied assurances that silence will not be used against the suspect. 459 U. S., at 565-566. Both Doyle elements —the constitutional dimension and the implied assurance — are equally present when post-Miranda warnings silence is used to prove sanity. Unlike Neville, therefore, and like Doyle, Greenfield received “the sort of implicit promise to forgo use of evidence that would unfairly ‘trick’ [him] if the evidence were later offered against him at trial.” 459 U. S., at 566.

The Florida Attorney General further contends that a suspect’s comprehension of Miranda warnings, as evidenced by his silence, is far more probative of sanity than of commission of the underlying offense. He therefore argues that the reliance on the “insolubly ambiguous” character of the post-Miranda warnings silence in the Doyle opinion, 426 U. S., at 617, is inappropriate in the context of an insanity defense. We need not evaluate the probative value of respondent’s silence to reject this argument. For the ambiguity of the defendants’ silence in Doyle merely added weight to the Court’s principal rationale, which rested on the implied assurance contained in the Miranda warning. See South Dakota v. Neville, 459 U. S., at 564-565; Jenkins v. Anderson, 447 U. S. 231, 239-240 (1980). The Attorney General’s argument about the probative value of silence therefore fails entirely to meet the problem of fundamental unfairness that flows from the State’s breach of its implied assurances.

Finally, the Florida Attorney General argues that it is vitally important to be able to present evidence of a defendant’s sanity at the time of the offense and shortly thereafter. However, as the dissenting judge in the Florida Court of Appeal recognized in this very case, the State’s legitimate interest in proving that the defendant’s behavior appeared to be rational at the time of his arrest could have been served by carefully framed questions that avoided any mention of the defendant’s exercise of his constitutional rights to remain silent and to consult counsel. What is impermissible is the evidentiary use of an individual’s exercise of his constitutional rights after the State’s assurance that the invocation of those rights will not be penalized.

In Doyle, we held that Miranda warnings contain an implied promise, rooted in the Constitution, that “silence will carry no penalty.” 426 U. S., at 618. Our conclusion that it was fundamentally unfair for the Ohio prosecutor to breach that promise by using the defendants’ postarrest, post-Miranda warnings silence to impeach their trial testimony requires us also to conclude that it was fundamentally unfair for the Florida prosecutor to breach the officers’ promise to respondent by using his postarrest, post-Miranda warnings silence as evidence of his sanity.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Rehnquist,

with whom The Chief Justice joins, concurring in the result.

I agree with the Court that our opinion in Doyle v. Ohio, 426 U. S. 610 (1976), shields from comment by a prosecutor a defendant’s silence after receiving Miranda warnings, even though the comment be addressed to the defendant’s claim of insanity. I write separately, however, to point out that it does not follow from this that the Court of Appeals, which took the same position, reached the correct result. That court expanded Doyle to cover not merely silence, but requests for counsel, and ignored the fact that the evidence upon which the prosecutor commented had been admitted without objection. Analyzed in these terms, the Court of Appeals’ conclusion that the “error” was not harmless is suspect: The portion of the prosecutor’s closing statement that the Court of Appeals held amounted to constitutional error was in large part unobjectionable from a constitutional point of view, and the officer’s testimony relating to silence was already before the jury, without objection. I concur in the result reached today because one of the prosecutor’s comments, however brief, was an improper comment on respondent’s silence, and the State does not argue here that any error was harmless beyond a reasonable doubt.

In Doyle, the Court said:

“The warnings mandated by [Miranda] . . . require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. . . . Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assur-anee is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” 426 U. S., at 617-618 (footnotes omitted).

Doyle addressed the propriety of cross-examining defendants about their silence following Miranda warnings. Here the Court of Appeals assumed, without analysis, that respondent’s conduct and statements following the warnings, such as his requests for a lawyer, should be treated the same as silence. I disagree. Doyle deemed silence “insolubly ambiguous” — the defendant may be indicating he has nothing to say in his defense, or he may be relying on the assurance that he has a right to remain silent. Similarly, a request for a lawyer has essentially no probative value where the question is one of guilt or innocence: No sensible person would draw an inference of guilt from a defendant’s request for a lawyer after he had been told he had a right to consult one; it is simply not true that only a guilty person would want to have a lawyer present when being questioned by the police.

But a request for a lawyer may be highly relevant where the plea is based on insanity. There is no “insoluble ambiguity” in the request; it is a perfectly straightforward statement tending to show that an individual is able to understand his rights and is not incoherent or obviously confused or unbalanced. While plainly not conclusive proof of sanity, the request for a lawyer, like other coherent and responsive statements made near the time of the crime, is certainly relevant.

Nor does the “unfairness” prong of Doyle, based on the implicit assurance in the Miranda warnings that “silence will carry no penalty,” bar prosecutorial comment on respondent’s requests for a lawyer. Officer Pilifant told respondent: “You have a right to remain silent. Anything you say can and will be used against you in a court of law.” App. 73. The logical corollary of this warning — that what respondent does say can be used against him — is that what he does not say cannot.

Officer Pilifant’s description of respondent’s right to counsel was framed differently:

“You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish.” Ibid.

I do not read the foregoing statement as containing any promise, express or implied, that the words used in responding to notice of the right to a lawyer will not be used by the State to rebut a claim of insanity. ' In the absence of such a promise, respondent surely was not “tricked” into asking for a lawyer, and the prosecutor’s reference to respondent’s request was in no way “fundamentally unfair.”

Nor do I believe that relevant comment about the invocation of the right to an attorney, made in an effort to defeat a claim of insanity, works the sort of “penalty” condemned in Doyle. Inviting the jury to draw an inference of guilt, which separates a defendant from the mass of society, is one thing; inviting it to draw an inference of sanity or rationality, which merely places a defendant together with the mass of society, is quite another. A suspect’s right to an attorney during questioning, which is derivative of his right to remain silent, see Miranda v. Arizona, 384 U. S. 436, 469-470 (1966), is not unconstitutionally burdened by use of his request as evidence of his ability to distinguish right from wrong.

Turning to the prosecutor’s closing argument in this case, I believe that far less of what the Court of Appeals described as the “challenged portion” violated Doyle than did the Court of Appeals. That “challenged portion” consists of the following statement:

“Let’s go on to Officer Pilifant who took the stand, who the psychiatrists, both defense psychiatrists, never even heard about, never even talked to. He states that he saw this fellow [respondent] on the beach and that he went up to him, talked to him, and then arrested him for the offense. The fellow voluntarily put his arms behind his back and said he would go to the car. This is supposedly an insane person under the throws [sic] of an acute condition of schizophrenic paranoia at the time. He goes to the car and the officer reads him his Miranda rights. Does he say he doesn’t understand them? Does he say ‘What’s going on?’ No. He says ‘I understand my rights. I do not want to speak to you. I want to speak to an attorney.’ Again an occasion of a person who knows what’s going on around his surroundings, and knows the consequences of his act. Even down — as going down [to] the car as you recollect Officer Pil[i]fant said he explained what Miranda rights meant and the guy said — and Mr. Greenfield said T appreciate that, thanks a lot for telling me that.’ And here we are to believe that this person didn’t know what he was doing at the time of the act, and then even down at the station, according to Detective Jolley — He’s down there. He says, ‘Have you been read your Miranda rights?’ ‘Yes, I have.’ ‘Do you want to talk?’ ‘No.’ ‘Do you want to talk to an attorney?’ ‘Yes.’ And after he talked to the attorney again he will not speak. Again another physical overt indication by the defendant....
“So here again we must take this in consideration as to his guilt or innocence, in regards to sanity or insanity.” App. 96-98.

The first part of the statement describes, in the words of the arresting officer, prearrest conduct of the defendant. Doyle does not bar this sort of testimony. Fletcher v. Weir, 455 U. S. 603 (1982). When the defendant was read his Miranda rights, he did not remain silent; he said:

“I understand my rights. I do not want to speak to you. I want to speak to an attorney. . . . [And then] I appreciate that, thanks a lot for telling me that.”

Thus Doyle does not cover this portion of the closing argument either. While a defendant’s invocation of his right to an attorney, or his statement that he understands (and appreciates being informed about) his rights, would be largely irrelevant in the case of most defenses, it is surely relevant in the context of a claim of insanity.

The only portion of the summation that can, in my opinion, be said to violate Doyle is the following:

“[E]ven down at the station, according to Detective Jolley — He’s down there. He says, ‘Have you been read your Miranda rights?’ ‘Yes, I have.’ ‘Do you want to talk?’ ‘No.’ ‘Do you want to talk to an attorney?’ ‘Yes.’ And after he talked to the attorney again he will not speak.”

This is a comment on respondent’s silence, and as such it constitutes a breach of the Miranda warning’s “implied assurance” that his silence would not be used against him.

The Court of Appeals’ determination that the prosecutor’s error was not harmless was based on its apparent conclusion that all of the “challenged portion” of the prosecutor’s statement violated the constitutional rights of the defendant. The court stated:

“The prosecutor relied strongly on [respondent’s] conduct as evidence of sanity; his closing argument was not lengthy and the portion challenged here was not minor. We cannot say that the error was harmless beyond a reasonable doubt.” 741 F. 2d 329, 336 (1984) (emphasis added).

But as noted above, actually a much smaller portion of this statement was constitutionally objectionable. And in evaluating whether or not this minute extract from the prosecutor’s closing argument can be deemed harmless, I think an important factor apparently not considered by the Court of Appeals was that the testimony on which the summation was based had already come in without objection. It was there for the jury to consider on its own regardless of whether the prosecutor ever mentioned it. This fact, together with the brevity of the prosecutor’s improper comment, at least suggests that the error was harmless beyond a reasonable doubt. See Cupp v. Naughten, 414 U. S. 141 (1973); Donnelly v. DeChristoforo, 416 U. S. 637 (1974). As the Court points out, however, ante, at 295, n. 13, the Attorney General has not contested the Court of Appeals’ conclusion that any error was not harmless. Accordingly, I concur in the result.

       See Farrell v. State, 101 So. 2d 130, 133 (Fla. 1958) (“when there is testimony of insanity sufficient to present a reasonable doubt of sanity the presumption [of sanity] vanishes. The defendant is then entitled to an acquittal if the state does not overcome the reasonable doubt”), cited in Greenfield v. State, 337 So. 2d 1021, 1023, n. 2 (Fla. App. 1976).

       He argued, in part:
      “He goes to the ear and the officer reads him his Miranda rights. Does he say he doesn’t understand them? Does he say ‘what’s going on?’ No. He says ‘I understand my rights. I do not want to speak to you. I want to speak to an attorney.’ Again an occasion of a person who knows what’s going on around his surroundings, and knows the consequences of his act. Even down — as going down [to] the car as you recollect Officer Pil[i]fant said he explained what Miranda rights meant and the guy said — and Mr. Greenfield said ‘I appreciate that, thanks a lot for telling me that.’ And here we are to believe that this person didn’t know what he was doing at the time of the act, and then even down at the station, according to Detective Jolley — He’s down there. He says, ‘Have you been read your Miranda rights?’ ‘Yes, I have.’ ‘Do you want to talk?’ ‘No.’ ‘Do you want to talk to an attorney?’ ‘Yes.’ And after he talked to the attorney again he will not speak. Again another physical overt indication by the defendant....

        “So here again we must take this in consideration as to his guilt or innocence, in regards to sanity or insanity.” App. 96-98.

       The Florida Attorney General did not object to the Magistrate’s conclusion that the Florida Court of Appeal had rejected respondent’s claim on its merits. In his petition for rehearing in the United States Court of Appeals for the Eleventh Circuit, the Attorney General renewed the argument that the postarrest, post -Miranda warnings silence issue was barred by Wainwright v. Sykes, 433 U. S. 72 (1977). He advances the same argument in this Court. However, as the Magistrate concluded, the Florida appellate court clearly addressed the issue on the merits. Thus, we must reject the Attorney General’s argument. See Ulster County Court v. Allen, 442 U. S. 140, 149 (1979); Mullaney v. Wilbur, 421 U. S. 684, 704, n. (1975) (Rehnquist, J., concurring). Cf. Franks v. Delaware, 438 U. S. 154, 161-162 (1978); Raley v. Ohio, 360 U. S. 423, 436-437 (1959); Manhattan Life Insurance Co. v. Cohen, 234 U. S. 123, 134 (1914).

       See Sulie v. Duckworth, 689 F. 2d 128 (CA7 1982), cert. denied, 460 U. S. 1043 (1983); United States v. Trujillo, 578 F. 2d 285 (CA10), cert. denied, 439 U. S. 858 (1978).

       “Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. MR. Justice White, concurring in the judgment in United States v. Hale, [422 U. S.], at 182-188, put it very well:
      “ ‘[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’” Doyle v. Ohio, 426 U. S., at 618-619 (footnotes omitted).
      In United States v. Hale, 422 U. S. 171 (1975), the Court had held that the use of postarrest, post-Miranda warnings silence was impermissible in federal prosecutions. The Court based its holding on its supervisory power in federal proceedings and left open the constitutional question. Justice White’s concurrence argued that the use violated due process, and it was that view the Court adopted in Doyle.

       That this “fundamental unfairness” derives from the implicit assurances of the Miranda warnings is supported by our holdings that due process is not violated by the impeachment use of pre-Miranda warnings silence, either before arrest, Jenkins v. Anderson, 447 U. S. 231 (1980), or after arrest, Fletcher v. Weir, 455 U. S. 603 (1982), or of post-Miranda warnings statements, Anderson v. Charles, 447 U. S. 404 (1980); nor is it violated by the use of a refusal to take a state test that does not involve Miranda-]ike warnings, Neville.

       Notably, the Court in Doyle did not rely on the contention that Ohio had violated the defendants’ Fifth Amendment privilege against self-incrimination by asking the jury to draw an inference of guilt from the exercise of their constitutional right to remain silent. Cf. Griffin v. Cali-

        fomia, 380 U. S. 609 (1965) (Fifth Amendment prohibits prosecutorial comment on defendant’s refusal to testify).

       The constitutional violation might thus be especially egregious because, unlike Doyle, there was no risk “that exclusion of the evidence [would] merely provide a shield for perjury. ” 426 U. S., at 626 (Stevens, J., dissenting).

       Cf. n. 1, supra.

       To the extent that the Attorney General seeks to rely on Neville’s Fifth Amendment holding, his argument is inapposite because the Doyle analysis rests on the Due Process Clause, not the Fifth Amendment.

       We note, however, that the Florida Supreme Court does not share the Florida Attorney General’s view about the probative value of silence in an insanity context. As the Florida court wrote in State v. Burwick, 442 So. 2d 944, 948 (1983):
      “Post-arrest, post -Miranda silence is deemed to have dubious probative value by reason of the many and ambiguous explanations for such silence. 422 U. S. at 180 ... . Contrary to what Greenfield intimates, these ambiguities attendant to post-Miranda silence do not suddenly disappear when an arrestee’s mental condition is brought into issue. The same evidentiary problems addressed by the Supreme Court in Hale are present in the case before us. For example, one could reasonably conclude that custodial interrogation might intimidate a mentally unstable person to silence. Likewise, an emotionally disturbed person could be reasonably thought to rely on the assurances given during a Miranda warning and thereafter choose to remain silent. In sum, just what induces post-arrest, post-Miranda silence remains as much a mystery today as it did at the time of the Hale decision. Silence in the face of accusation is an enigma and should not be determinative of one’s mental condition just as it is not determinative of one’s guilt. Accordingly, the state should not be permitted to confirm Burwick’s mental state with evidence of his post-Miranda silence.”

       Several commentators have also emphasized that, particularly in light of later eases, Doyle’s probativeness rationale is secondary to its implied assurance rationale. See, e. g., Note, Protecting Doyle Rights After Anderson v. Charles: The Problem of Partial Silence, 69 Va. L. Rev. 155, 165, n. 56 (1983); Clark, Impeachment With Post-Arrest Silence: The Emergence of a “New Federalism” Approach, 19 Am. Crim. L. Rev. 751, 759 (1982); The Supreme Court, 1979 Term, 94 Harv. L. Rev. 77, 84-85 (1980).

       In his petition and brief, the Attorney General has not contested the Eleventh Circuit’s view that the prosecutorial comment was directed at the “defendant’s post-Miranda warning silence,” 741 F. 2d 329, 333 (1984), or its conclusion that this comment, if erroneous, was not harmless, id., at 336. Nor has respondent contested the point that a prosecutor may legitimately inquire into and comment upon “purely ‘demeanor’ or ‘behavior’ evidence.” Brief for Respondent 14. With respect to post-Miranda warnings “silence,” we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.

       This conclusion is supported by a number of state decisions, in addition to that of Florida. See Commonwealth v. Mahdi, 388 Mass. 679, 448 N. E. 2d 704 (1983); People v. Vanda, 111 Ill. App. 3d 551, 444 N. E. 2d 609 (1982), cert. denied, 464 U. S. 841 (1983); People v. Schindler, 114 Cal. App. 3d 178, 170 Cal. Rptr. 461 (1980).

      It may be, as the Court suggests, that the prosecution could have served its legitimate purposes “by carefully framed questions that avoided any mention of the defendant’s exercise of his constitutional righ[t]... to consult counsel,” ante, at 295. That the prosecutor might have done things differently, however, does not render unconstitutional his express reference to respondent’s invocation of his right to counsel. Indeed, I would think that quotation of a defendant’s precise words is a far more effective means of disproving insanity than are general references to his “rationality” or “responsiveness.”


source: Caselaw Access Project

author: Justice Powell Justice Marshall,

license: Public Domain

text:
    UNITED STATES v. LOUD HAWK et al.
    No. 84-1361.
    Argued November 12, 1985
    Decided January 21, 1986

      Powell, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 317.

      Bruce N. Kuhlik argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Kathleen A. Felton.

      Kenneth Saul Stern, by appointment of the Court, 471 U. S. 1123, argued the cause for respondents. With him on the brief were Tom Steenson, Ronald P. Schiffman, and Michael Timothy Bailey.

        James W. Klein filed a brief for the Public Defender Service for the District of Columbia as amicus curiae urging affirmance.

   Justice Powell

delivered the opinion of the Court.

In this case we must decide, first, whether the Speedy Trial Clause of the Sixth Amendment applies to time during which respondents were neither under indictment nor subjected to any official restraint, and, second, whether certain delays occasioned by interlocutory appeals were properly weighed in assessing respondents’ right to a speedy trial. A divided panel of the Court of Appeals for the Ninth Circuit weighed most of the 90 months from the time of respondents’ arrests and initial indictment in November 1975 until the District Court’s dismissal of the indictment in May 1983 towards respondents’ claims under the Speedy Trial Clause. We conclude that the time that no indictment was outstanding against respondents should not weigh towards respondents’ speedy trial claims. We also find that in this case the delay attributable to interlocutory appeals by the Government and respondents does not establish a violation of the Speedy Trial Clause. Accordingly, we reverse the holding of the Court of Appeals that respondents were denied their right to a speedy trial.

I — (

In view of the nature of respondents’ claim, we state the factual and procedural history of this case in some detail. On November 14, 1975, pursuant to a tip from the Federal Bureau of Investigation, Oregon state troopers stopped two vehicles in search of several federal fugitives. After an exchange of gunfire and a motor chase, state troopers captured all but one of the respondents, Dennis Banks. Both vehicles were locked and impounded while federal and state authorities obtained search warrants.

Searches of the vehicles over the next two days disclosed 350 pounds of dynamite, 6 partially assembled time bombs, 2,600 rounds of ammunition, 150 blasting caps, 9 empty hand grenades, and miscellaneous firearms. Oregon law enforcement officers, apparently unaware of the evidentiary consequences, adhered to their usual policy and destroyed the dynamite. A federal agent present at the destruction photographed the explosions. United States v. Loud Hawk, 628 F. 2d 1139, 1142 (CA9 1979). State officials also preserved wrappers from the dynamite casings.

A federal grand jury indicted respondents on November 25, 1975, on charges of possessing firearms and explosives. Trial in the United States District Court for the District of Oregon was set for the week of February 9, 1976. On December 22, 1975, a grand jury returned a five-count superseding indictment. This indictment charged all respondents with three counts relating to possession and transportation in commerce of an unregistered destructive device (the dynamite counts) and two counts relating to unlawful possession of firearms (the firearms counts).

Two days later, respondents filed a motion to suppress all evidence concerning the dynamite, arguing that federal and state officials had intentionally and negligently destroyed the dynamite before the defense had the opportunity to examine it. After initially denying respondents’ motion, and after two continuances at respondents’ behest, the District Court granted respondents’ motion to suppress on March 31, 1976. App. to Pet. for Cert. 157a. Three weeks later, the Government appealed the suppression order, and moved that trial on all counts be continued pending the outcome of the appeal. The District Court denied the Government’s request for a continuance, and when the case was called for trial, the Government answered “not ready.” Pursuant to Federal Rule of Criminal Procedure 48(b), the District Judge dismissed the indictment with prejudice. Six months had passed since the original indictment.

The Government immediately appealed the dismissal, and the two appeals were consolidated. The Court of Appeals heard argument on October 15, 1976, and a divided panel affirmed in an unreported opinion on July 26, 1977. App. to Pet. for Cert. 88a-118a. On the Government’s motion, the court voted on October 17, 1977, to hear the case en banc. On March 6, 1978, the Court of Appeals en banc remanded for findings of fact on whether federal officials participated in the destruction of the dynamite and whether respondents were prejudiced by its destruction. The court retained jurisdiction over the appeal pending the District Court’s findings. The District Court issued its findings on August 23, 1978, and the case returned to the Court of Appeals.

On August 7, 1979, the Court of Appeals reversed the suppression order and directed that the dynamite counts be reinstated. United States v. Loud Hawk, 628 F. 2d, at 1150. The court also held that although the Government could have gone to trial on the firearms counts pending the appeal, the District Court erred in dismissing those counts with prejudice. Id., at 1151. The Court of Appeals denied respondents’ petition for rehearing on October 1, 1979. Respondents petitioned for certiorari; we denied the petition on March 3, 1980. 445 U. S. 917. The mandate of the Court of Appeals issued on March 12, 1980, 46 months after the Government filed its notice of appeal from the dismissal of the indictment. Respondents were unconditionally released during that time.

Following remand, the District Court ordered the Government to reindict on the firearms charges. Respondents filed a number of motions during June and July of 1980 in response to the superseding indictment, including a motion to dismiss for vindictive prosecution. On August 8, 1980, the District Court granted the vindictive prosecution motion as to KaMook Banks and denied it as to respondents Dennis Banks, Render, and Loud Hawk. Both sides appealed. Respondents remained free on their own recognizance during this appeal.

The appeals were consolidated, and the Court of Appeals ordered expedited consideration. The court heard argument on January 7,1981, but did not issue its decision until July 29, 1982. The court sustained the Government’s position on all issues. United States v. Banks, 682 F. 2d 841. Respondents’ petitions for rehearing were denied on October 5, 1982. Respondents again petitioned for certiorari, and we denied the petition on January 10, 1983. 459 U. S. 1117. The Court of Appeals’ mandate issued on January 31, 1983, almost 29 months after the appeals were filed.

The District Court scheduled trial to begin on April 11, 1983. The Government sought and received a continuance until May 3, 1983, because of alleged difficulties in locating witnesses more than seven years after the arrests. Subsequently, the court on its own motion continued the trial date until May 23, 1983, and then again rescheduled the trial for June 13. The record in this Court does not reveal the reasons for these latter two continuances. Defendants objected to each continuance.

On May 20, 1983, the District Court again dismissed the indictment, this time on the ground that respondents’ Sixth Amendment right to a speedy trial had been violated. 564 F. Supp. 691. The Government appealed, and unsuccessfully urged the District Court to request that the Court of Appeals expedite the appeal. On its own motion the court treated the appeal as expedited, and heard argument on January 4, 1984. A divided panel affirmed on August 30, 1984. 741 F. 2d 1184. We granted certiorari, 471 U. S. 1014 (1985), and now reverse.

II

The Government argues that under United States v. MacDonald, 456 U. S. 1 (1982), the time during which defendants are neither under indictment nor subject to any restraint on their liberty should be excluded — weighed not at all — when considering a speedy trial claim. Respondents contend that even during the time the charges against them were dismissed, the Government was actively pursuing its case and they continued to be subjected to the possibility that bail might be imposed. This possibility, according to respondents, is sufficient to warrant counting the time towards a speedy trial claim.

The Court has found that when no indictment is outstanding, only the “actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections of the speedy trial provision of the Sixth Amendment.” United States v. Marion, 404 U. S. 307, 320 (1971) (emphasis added); see MacDonald, supra, at 9. As we stated in MacDonald: “The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” 456 U. S., at 8.

During much of the litigation, respondents were neither under indictment nor subject to bail. Further judicial proceedings would have been necessary to subject respondents to any actual restraints. Cf. Klopfer v. North Carolina, 386 U. S. 213 (1967). As we stated in MacDonald: “[W]ith no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, ‘a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.’” 456 U. S., at 9.

Respondents argue that the speedy trial guarantee should apply to this period because the Government’s desire to prosecute them was a matter of public record. Public suspicion, however, is not sufficient to justify the delay in favor of a defendant’s speedy trial claim. We find that after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were “in the same position as any other subject of a criminal investigation.” MacDonald, supra, at 8-9. See Marion, supra, at 309. The Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before trial. The Clause does not, for example, limit the length of a pre-indictment criminal investigation even though “the [suspect’s] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life.” 456 U. S., at 9.

Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal — an appearance they waived— constitute the sort of “actual restraint” required under our precedents as a basis for application of the Speedy Trial Clause. Finally, we are not persuaded that respondents’ need for counsel while their case was technically dismissed supports their speedy trial claim. Although the retention of counsel is frequently an inconvenience and an expense, the Speedy Trial Clause’s core concern is impairment of liberty; it does not shield a suspect or a defendant from every expense or inconvenience associated with criminal defense.

We therefore find that under the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.

I — I h-H h — i

The remaining issue is how to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint. As we have recognized, the Sixth Amendment’s guarantee of a speedy trial “is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U. S. 116, 120 (1966). These safeguards may be as important to the accused when the delay is occasioned by an unduly long appellate process as when the delay is caused by a lapse between the initial arrest and the drawing of a proper indictment, Ewell, supra, at 118-119, or by continuances in the date of trial, Barker v. Wingo, 407 U. S. 514, 517-518 (1972).

At the same time, there are important public interests in the process of appellate review. The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided through orderly appellate review safeguards both the rights of defendants and the “rights of public justice.” Beavers v. Haubert, 198 U. S. 77, 87 (1905). The legislative history of 18 U. S. C. § 3731 “makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.” United States v. Wilson, 420 U. S. 332, 337 (1975).

It is, of course, true that the interests served by appellate review may sometimes stand in opposition to the right to a speedy trial. But, as the Court observed in United States v. Ewell, supra, at 121:

“It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. . . . [This rule] has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. . . . These policies, so carefully preserved in this Court’s interpretation given the Double Jeopardy Clause, would be seriously undercut by [an] interpretation given the Speedy Trial Clause [that raised a Sixth Amendment obstacle to retrial following successful attack on conviction].”

In Barker, we adopted a four-part balancing test to determine whether a series of continuances infringed upon the defendant’s right to a speedy trial. 407 U. S., at 530. That test assessed the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Ibid (footnote omitted). The Barker test furnishes the flexibility to take account of the competing concerns of orderly appellate review on the one hand, and a speedy trial on the other. We therefore adopt this functional test to determine the extent to which appellate time consumed in the review of pretrial motions should weigh towards a defendant’s speedy trial claim. Under this test, we conclude that in this case the delays do not justify the “unsatisfactorily severe remedy of dismissal.” Id., at 522.

A

Barker’s first, third, and fourth factors present no great difficulty in application. The first factor, the length of delay, defines a threshold in the inquiry: there must be a delay long enough to be “presumptively prejudicial.” Id., at 530. Here, a 90-month delay in the trial of these serious charges is presumptively prejudicial and serves to trigger application of Barkers other factors. Ibid.

The third factor — the extent to which respondents have asserted their speedy trial rights — does not support their position. Although the Court of Appeals found that respondents have repeatedly moved for dismissal on speedy trial grounds, 741 F. 2d, at 1192, that finding alone does not establish that respondents have appropriately asserted their rights. We held in Barker that such assertions from defendants are “entitled to strong evidentiary weight” in determining whether their rights to a speedy trial have been denied. 407 U. S., at 531-532. These assertions, however, must be viewed in the light of respondents’ other conduct.

Here, respondents’ speedy trial claims are reminiscent of Penelope’s tapestry. At the same time respondents were making a record of claims in the District Court for speedy trial, they consumed six months by filing indisputably frivolous petitions for rehearing and for certiorari after this Court’s decision in United States v. Hollywood Motor Car Co., 458 U. S. 263 (1982) (federal courts without jurisdiction to hear defendant’s interlocutory appeal from denial of motion to dismiss indictment). They also filled the District Court’s docket with repetitive and unsuccessful motions. See, e. g., n. 10, supra.

The Court of Appeals gave “little weight” to the fourth factor, prejudice to respondents. At most, the court recognized the possibility of “impairment of a fair trial that may well result from the absence or loss of memory of witnesses in this case.” 741 F. 2d, at 1193. See Barker, 407 U. S., at 532. That possibility of prejudice is not sufficient to support respondents’ position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden.

B

The flag all litigants seek to capture is the second factor, the reason for delay. In Barker, we held that “different weights should be assigned to different reasons.” Id., at 531. While a “deliberate attempt to delay the trial in order to hamper the defense,” would be weighed heavily against the Government, a delay from “overcrowded courts” — as was the situation here — would be weighed “less heavily.” Ibid. Given the important public interests in appellate review, supra, at 313, it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government’s position on the appealed issue, the importance of the issue in the posture of the case, and — in some cases — the seriousness of the crime. United States v. Herman, 576 F. 2d 1139, 1146 (CA5 1978) (Wisdom, J.). For example, a delay resulting from an appeal would weigh heavily against the Government if the issue were clearly tangential or frivolous. Ibid. Moreover, the charged offense usually must be sufficiently serious to justify restraints that may be imposed on the defendant pending the outcome of the appeal. Ibid.

Under Barker, delays in bringing the case to trial caused by the Government’s interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial. It is clear in this case, however, that respondents have failed to show a reason for according these delays any effective weight towards their speedy trial claims. There is no showing of bad faith or dilatory purpose on the Government’s part. The Government’s position in each of the appeals was strong, and the reversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government’s action. Moreover, despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeals.

The only remaining question is the weight to be attributed to delays caused by respondents’ interlocutory appeals. In that limited class of cases where a pretrial appeal by the defendant is appropriate, see, e. g., Hollywood Motor Car Co., supra, at 265-266, delays from such an appeal ordinarily will not weigh in favor of a defendant’s speedy trial claims. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial. As one Court of Appeals has noted in the context of a District Court’s consideration of pretrial motions:

“Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a decision, the defendants are not now able to criticize the very process which they so frequently called upon.” United States v. Auerbach, 420 F. 2d 921, 924 (CA5 1969), rehearing denied, 423 F. 2d 676, cert. denied, 399 U. S. 905 (1970).

In the present case, respondents’ appeal was allowable under the law of the Ninth Circuit before our decision in Hollywood Motor Car, supra. But we find that their position was so lacking in merit that the time consumed by this appeal should not weigh in support of respondents’ speedy trial claim. Nor do we weigh the additional delay of six months resulting from respondents’ frivolous action in seeking rehearing and certiorari toward respondents’ speedy trial claim. See ibid., decided prior to these latter actions.

> i — j

We cannot hold, on the facts before us, that the delays asserted by respondents weigh sufficiently in support of their speedy trial claim to violate the Speedy Trial Clause. They do not justify the severe remedy of dismissing the indictment. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.

It is so ordered.

Justice Marshall,

with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, dissenting.

The Court holds today that the Speedy Trial Clause of the Sixth Amendment does not apply to a Government appeal from a district court’s dismissal of an indictment, unless the defendant is incarcerated or otherwise under restraint during that appeal. The majority supports this result by equating the present case to United States v. MacDonald, 456 U. S. 1 (1982). That analysis, however, both ignores the considerable differences between this case and MacDonald and gives short shrift to the interests protected by the Speedy Trial Clause. I further disagree with the majority’s application of Barker v. Wingo, 407 U. S. 514 (1972), to the remaining appellate delays in this case.

r — H

The majority concludes that when an appeal arises out of the district court’s dismissal of an indictment, the lack of an outstanding indictment absolves the Government of its responsibility to provide a speedy trial. However, we have never conditioned Sixth Amendment rights solely on the presence of an outstanding indictment. Those rights attach to anyone who is “accused,” and we have until now recognized that one may stand publicly accused without being under indictment. The majority offers two reasons for concluding that respondents did not enjoy the right to a speedy trial during the Government’s appeals. First, respondents were suffering only “[p]ublic suspicion,” ante, at 311, and not a formal accusation. Second, they were not subject to “actual restraints” on their liberty. Both of these rationales are seriously flawed.

A

In United States v. Marion, 404 U. S. 307 (1971), we held that the Speedy Trial Clause does not apply until the Government, either through arrest or indictment, asserts probable cause to believe that a suspect has committed a crime. Before that time the individual, while possibly aware of the Government’s suspicion, is not “the subject of public accusation,” id., at 321, and his only protection against delay comes from the Due Process Clause and the applicable statute of limitations. The Court applied the same rationale in MacDonald, supra. In that case, military charges of murder against MacDonald, an Army officer, were dropped after an investigation. MacDonald was then given an honorable discharge, only to be indicted by a civilian grand jury nearly four years later for the same murders. The Court held that this delay did not implicate the speedy trial right because “the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” Id., at 7. The Court reasoned that after the termination of the first formal prosecution, MacDonald was “in the same position as any other subject of a criminal investigation,” id., at 8-9, and thus was no more an “accused” than was the defendant in Marion before his arrest.

The same cannot be said of respondents in the present case. Unlike one who has not been arrested, or one who has had the charges against him dropped, respondents did not enjoy the protection of the statute of limitations while the Government prosecuted its appeals. That protection was an important aspect of our holding in Marion that prearrest delay is not cognizable under the Speedy Trial Clause. See 404 U. S., at 322-323. More importantly, in contrast to MacDonald, the Government has not “dropped” anything in this case. There has been at all relevant times a case on a court docket captioned United States v. Loud Hawk — I can think of no more formal indication that respondents stand accused by the Government.

The majority argues that while “the Government’s desire to prosecute [respondents] was a matter of public record,” that desire constituted only “[p]ublic suspicion” that is insufficient to call Sixth Amendment rights into play, citing Marion and MacDonald. Ante, at 311. The reason that the Government’s desire to prosecute in both of those cases did not constitute an “accusation,” however, is that the Government had not yet formalized its commitment. Indeed, in MacDonald, the Government dismissed the murder charges because it “concluded that they were untrue,” 456 U. S., at 10, n. 12, thus acknowledging that the first formal accusation had been a mistake and extinguishing the prior probable-cause determination. In the present case, the Government has made no such confession of error and continues to align its full resources against respondents in judicial proceedings.

The most telling difference between this case and MacDonald, however, is the fact that respondents’ liberty could have been taken from them at any time during the Government’s appeal. One of the primary purposes of the speedy trial right, of course, is to prevent prolonged restraints on liberty, id., at 8; Barker v. Wingo, 407 U. S., at 532, and the absence of any possibility of such restraints was a vital part of our MacDonald holding. See 456 U. S., at 9. In contrast, Congress has declared explicitly, in 18 U. S. C. §3731, that a person in respondents’ position shall be subject to the same restraints as an arrested defendant awaiting trial. Thus the District Court had the undoubted authority to condition respondents’ release on the posting of bail, or indeed to keep them in jail throughout the appeal, see 18 U. S. C. § 3142(e) (1982 ed., Supp. III). Respondents’ release could have been accompanied by restrictions on travel, association, employment, abode, and firearms possession, or conditioned on their reporting regularly to law enforcement officers and/or keeping a curfew. See § 3142(c). Considering all the circumstances, therefore, I believe that respondents’ position is most closely analogous to that of a defendant who has been arrested but not yet indicted.

B

As if acknowledging that the delay in this case is more analogous to postarrest, preindictment delay than to pre-arrest delay, the majority concedes that had respondents been incarcerated or forced to post bond during the Government’s appeals, the automatic exclusion rule of MacDonald would not apply. Ante, at 311, n. 13. Yet, inexplicably, the majority then suggests that the Speedy Trial Clause applies to postarrest, preindictment delay only when the defendant has been subjected to ‘“actual restraints,’” ante, at 310, quoting Marion, 404 U. S., at 320 (emphasis added by majority opinion). The majority completely misreads Marion while creating a rule that is flatly inconsistent with our prior holdings.

We held in Marion that prearrest delay is not cognizable under the Speedy Trial Clause, but we certainly did not disturb the settled rule that the Government’s formal institution of criminal charges, whether through arrest or indictment, always calls the speedy trial right into play. See id., at 316-319; see also United States v. Gouveia, 467 U. S. 180, 185-186 (1984). Although it specified detention and bail as possible deleterious effects of a formal criminal charge, Marion nowhere suggested that it is the restraints themselves, rather than the assertion of probable cause, that constitute an accusation. Nor did we hold that a criminal charge has less constitutional significance when a defendant is released on recognizance rather than on bail. See 404 U. S., at 321, n. 12. The majority identifies no logic or precedent supporting its novel conclusion that a defendant who is arrested and released on bail is “accused,” while a defendant who is arrested and released without bail, on the same evidence, is not “accused.”

Indeed, we have rejected precisely the interpretation of Marion that the majority now adopts. In Dillingham v. United States, 423 U. S. 64 (1975) (per curiam), we held that Marion does not require “actual prejudice” to invoke the speedy trial right for postarrest, preindictment delay. Such “actual prejudice” included the “actual restraints” that the majority now requires. The Court of Appeals in-that case noted that the defendant was released on bond, but without any other restrictions, pending trial. After citing Marion, it held that “any increased strain on this man’s life which followed his arrest. . . does not rise to the level of substantial actual prejudice.” United States v. Palmer, 502 F. 2d 1233, 1237 (CA5 1974), rev’d sub nom. Dillingham v. United States, supra. We summarily rejected the “actual prejudice” rationale, and the majority gives no reason whatsoever for resurrecting it today.

There can be no question that one who had been arrested and released under 18 U. S. C. § 3141(a) (1982 ed., Supp. Ill) would be entitled, under Marion, to the protections of the Speedy Trial Clause. Because respondents were by statute subject to the same restraints as that hypothetical defendant, I am at a loss to understand why they should enjoy less protection.

II

The majority also declines to hold the Government accountable for delay attributable to appeals during which respondents were under indictment. In doing so the majority emphasizes the second Barker factor — the reason for the delay, see 407 U. S., at 530. Because it concludes that “[tjhere is no showing of bad faith or dilatory purpose on the Government’s. part,” the majority declines to accord any “effective weight” to this factor in the speedy trial balance. Ante, at 316. In reaching this conclusion, it virtually ignores the most obvious “reason for the delay” in this case — the fact that the Court of Appeals was unable to decide these appeals in a reasonably prompt manner.

In Barker, we explained the application of the “reason for the delay” factor as follows:

“[Djifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” 407 U. S., at 531 (footnote omitted).

The majority’s application of this factor to the appellate delays in this case makes Government misconduct or bad faith a virtual prerequisite to a finding of a speedy trial violation. Seizing upon the approach of some of the Courts of Appeals, the majority analyzes the reason behind the appellate delay solely in terms of the reasonableness of the Government’s behavior in taking and prosecuting the appeal. This approach is inconsistent with the policies behind the speedy trial right. We recognized in Barker that the right protects both the defendant’s interest in fairness and society’s interest in providing swift justice. Id., at 519. Courts as well as prosecutors must necessarily work to promote those interests if they are to have any vitality. Because it is the Government as a whole — including the courts — that bears the responsibility to provide a speedy trial, the prosecutor’s good faith cannot suffice to discharge that responsibility.

The Court of Appeals frankly admitted that “most of the delay must be attributed to the processes of this court,” 741 F. 2d 1184, 1191 (CA9 1984), a conclusion that is difficult to escape. This case involves appeals from pretrial rulings. The Court of Appeals had every reason to know that these appeals should have been ruled upon as expeditiously as possible. See that court’s Rule 20. Yet it took over five years for the Court of Appeals to decide two appeals, one of them “expedited.” No complicated analysis is needed to identify the reason for the delay in this case.

I would hold, simply, that a nonfrivolous appeal by any party permits a reasonable delay in the proceedings. The number and complexity of the issues on appeal, or the number of parties, might permit a greater or lesser delay in a given case. The government, not the defendant, must suffer the ultimate consequences of delays attributable to “overcrowded courts,” ibid., even at the appellate level. In the present case, the amount of time that the appeals consumed is patently unreasonable. I would therefore weigh the second Barker factor against the Government in this case.

Ill

The majority has seriously misapplied our precedents in concluding that delay resulting when the government appeals the dismissal of an indictment is excludable for speedy trial purposes unless the defendant is subjected to actual restraints during that appeal. Its application of Barker v. Wingo to this case also undercuts the very purpose of the speedy trial right. I respectfully dissent.

       The Speedy Trial Clause of the Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .”

      The more stringent provisions of the Speedy Trial Act, 18 U. S. C. §3161 et seq., have mooted much litigation about the requirements of the Speedy Trial Clause as applied to federal prosecutions. The time devoted to pretrial appeals, however, is automatically excluded under the Act, §§ 3161(d)(2) and (h)(1)(E). These respondents must therefore seek any relief under the Speedy Trial Clause.

       Dennis James Banks, one of the respondents in this action, was active in the American Indian Movement, and was a fugitive when these events occurred. The siege and occupation of Wounded Knee had taken place 60 months before, and the Federal Bureau of Investigation was tracking Banks and his party as fugitives from that affair. United States v. Loud Hawk, 628 F. 2d 1139, 1141 (CA9 1979). For a description of the battle of Wounded Knee and the resultant violence and death, see United States v. Banks, 383 F. Supp. 389 (SD 1974), appeal dism’d, 513 F. 2d 1329 (CA8 1975); United States v. Banks, 374 F. Supp. 321 (SD 1974); United States v. Banks, 368 F. Supp. 1245 (SD 1973).

       The Government represents that it would introduce evidence at trial showing that respondent Dennis Banks was the driver of one of the vehicles. Banks was not apprehended until January 26, 1976.

       Respondents still dispute any characterization of the destroyed evidence as dynamite. Brief in Opposition 4, and n. 4; Brief for Respondents 4, n. 5. The Court of Appeals wrote:
      “Each of the seven boxes was marked ‘High Explosives Dangerous’ and on the side had the following markings:
      “‘50 lbs
      Gelex 2 1x8
      70% Strength
      D73MAO 7B’

        “together with the logo of the DuPont company prominently displayed. Inside were red cylindrical sticks with heavy wrapping paper covering the contents and marked:
      “ ‘Explosives Dangerous
      Gelex 2
      70% Strength
      E I Dupont De Nemours & Co. (Inc.).’”

        United States v. Loud Hawk, supra, at 1144-1146.
      We follow the practice of the opinions discussing the issue and refer to the destroyed evidence as dynamite. 741 F. 2d 1184, 1187 (CA9 1984); United States v. Loud Hawk, supra, at 1143. Cf. United States v. Banks, 682 F. 2d 841, 843 (CA9 1982) (“explosive material”).

       App. 40a-42a, and n. 4, 90a.

       The District Court denied the motion on January 21, 1976.

       On January 21, 1976, the District Court postponed trial until March 8, 1976, on respondents’ motion. On respondents’ motion and over the objection of the Government, on February 18, 1976, the District Court again continued trial until May 12, 1976. Record, Doc. Nos. 62, 64.

       The Government is permitted to pursue some interlocutory appeals under 18 U. S. C. § 3731. That section as then in effect read:
      “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
      “An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
      “The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.
      “Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 of this title.
      “The provisions of this section shall be liberally construed to effectuate its purposes.”

       App. 57. The Government obtained a new indictment from the grand jury that recharged with the original firearms count (although it substituted “receiving” for “transporting”) and two of the original three dynamite device counts. The new indictment also charged the defendants with two new destructive device counts relating to a slightly different type of destructive device. It also charged respondent KaMook Banks with a new count of receiving firearms while under indictment for a felony.

       A listing of the relevant docket entries, id., at 38-145, shows that the motions filed during this 4-week period included: motion for a transcript of a recently held hearing (June 24,1980), id., at 61; motion to dismiss counts three and four for insufficient allegations (July 7, 1980), id., at 63; motion to suppress evidence of pretrial photographic identification and “Tainted Potential Courtroom Identification,” ibid.; motion for change injury selection procedure, ibid.; motion to dismiss because of the grand jury composition, ibid.; motion to dismiss for vindictive prosecution, ibid.; motion to dismiss for preindictment delay, ibid.; motion for disclosure and production (July 21, 1980), id., at 64; motion for appointment of investigator at Government expense, ibid.; and third motion to dismiss for gross governmental misconduct, ibid. All motions except for KaMook Banks’ vindictive prosecution motion were denied (Aug. 5, 1980). Id., at 65-66.

       The Ninth Circuit’s holding conflicts with three other Circuits. See United States v. Herman, 576 F. 2d 1139, 1146 (CA5 1978); United States v. Jackson, 508 F. 2d 1001, 1004 (CA7 1975); United States v. Bishton, 150 U. S. App. D. C. 51, 54, 463 F. 2d 887, 890 (1972).

       In MacDonald, we held that where the Government has dismissed an indictment and the defendant is not subject to actual restraints on his liberty, the Speedy Trial Clause does not apply.

       In those instances where the defendant is subject to incarceration or bail, the courts would have to engage in a balancing of the restrictions imposed and their effect on the defendant, the necessity for delay, and the length of delay, using the approach we have outlined below. Infra, at 315-316.

       Homer, The Odyssey, Book II, lines 91-105 (R. Lattimore trans. 1965).

       The Sixth Amendment provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial

       It is also instructive to compare the present case and MacDonald with respect to another Sixth Amendment right — the right to counsel. Surely a Government appeal under 18 U. S. C. § 3731 is a “critical stage” of the prosecution, implicating the Sixth Amendment right to counsel. Cf. Evitts v. Lucey, 469 U. S. 387 (1985) (defendant in state prosecution has due process right to effective assistance of counsel on appeal, whether counsel is retained or appointed). As during other critical stages, the defendant needs an attorney during a government appeal “as a shield to protect him against being ‘haled into court’ by the State and stripped of his presumption of innocence.” Ross v. Moffitt, 417 U. S. 600, 610-611 (1974). Again, the contrast to MacDonald is striking. The defendant in that case would have had no Sixth Amendment right to counsel during the time between the dropping of the Army charges and the filing of the grand jury charges; that period was not a “critical stage” of a prosecution.
      In United States v. Gouveia, 467 U. S. 180 (1984), we held that the Sixth Amendment right to counsel is satisfied in a narrower class of cases than the speedy trial right. It therefore defies logic to conclude that respondents could be protected by the former, but not the latter, during the Government’s appeal.

       That neither Congress nor this Court has had any difficulty recognizing the fundamental difference between the Government’s dismissal of an indictment and the court’s dismissal, subject to appellate review, is clear from Federal Rule of Criminal Procedure 48. Subdivision (a) of that Rule permits the Government, with leave of court, to dismiss an indictment, and provides that when the indictment is dismissed, “the prosecution shall thereupon terminate.” Subdivision (b) permits the district court to dismiss an indictment, but contains no language suggesting that such action brings the prosecution to an end — nor could it, because the court’s dismissal is subject to the Government’s statutory right to appeal.
      Asking whether the indictment “exists” during the appeal, while interesting from the standpoint of ontology, is of limited practical help. Yet it is significant that in the MacDonald situation the Government must go back to the grand jury and seek reindictment. When the district court dismisses an indictment, on the other hand, the court of appeals can reinstate the indictment with the stroke of a pen.

       Title 18 U. S. C. §3731 provides in pertinent part: “Pending the prosecution and determination of the appeal. . . the defendant shall be released in accordance with chapter 207 of this title.” Chapter 207, 18 U. S. C. §§ 3141-3156, contains the procedures for pretrial release, and permits the district courts to impose various restraints pending trial. The Government concedes that respondents could have been incarcerated or put under other restraints during the Government’s appeals. Tr. of Oral Arg. 6, 18.

       It is worth noting that the Speedy Trial Act puts time limits on the Government beginning with “the date on which [the defendant] was arrested or served with a summons,” 18 U. S. C. § 3161, without regard to the terms of the defendant’s release.
      Moreover, Federal Rule of Criminal Procedure 48(b), which “provides for enforcement of the [speedy trial] right,” Pollard v. United States, 352 U. S. 354, 361, n. 7 (1957); see Marion, 404 U. S., at 319, states: “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court,... the court may dismiss the indictment, information or complaint.” That language clearly confers the same rights on a defendant who is arrested and unconditionally released as one who is released on conditions.

       Apparently relying on the fact that the defendant in Dillingham, had to post a $1,500 bond, see 502 F. 2d, at 1234, the Government reads Dillingham to stand for the proposition that any restriction, no matter how insignificant, invokes the Speedy Trial Clause when no indictment is outstanding. See Tr. of Oral Arg. 19. Once again, neither the plain language of the Sixth Amendment nor any decision of this Court suggests this peculiar constitutional standard. Moreover, while an indictment and an arrest are comparable in that each one constitutes a formal assertion of probable cause, there is no such symmetry between an indictment and incarceration or posting of bond. Simply put, the position advanced by the Government and the majority lacks even internal consistency.
      The only sensible reading of Dillingham is that actual restraints, like other types of prejudice to a defendant, are relevant to the speedy trial balance, but are not prerequisites to application of the Speedy Trial Clause. See Barker v. Wingo, 407 U. S. 514, 533 (1972).

       See, e. g., United States v. Saintil, 705 F. 2d 415 (CA11 1983); United States v. Herman, 576 F. 2d 1139 (CA5 1978).

       This assumes, of course, that the defendant wants a speedy trial and is not intentionally hindering the government’s attempt to provide one. That assumption may be open to question in this ease. The majority points out that respondents’ strategically timed demands for a speedy trial ring somewhat hollow in light of respondents’ overall behavior during the litigation. Were that the basis for the Court’s opinion, I might be able to accept a remand to the Court of Appeals for further consideration of that factor. I am unable, however, to agree with the majority’s analysis of the second Barker v. Wingo factor.

       The majority’s focus on the prosecution’s, rather than the court’s, contribution to the delay undoubtedly comes in part from a reluctance to permit district courts to tell a court of appeals, or possibly this Court, that it has taken too long to decide a case. However, appellate courts have no privilege to decline constitutional obligations. The appellate courts would be better advised to adopt procedures for the speedy resolution of interloe-utory criminal appeals than to force district courts into the uncomfortable position of dismissing indictments because of appellate delay.