freely refuse to communicate with the police. Relator obviously did not freely admit the veracity of the accusations. If he denied the statements, Pennsylvania would have excluded them. We hold that his choice to remain silent was equally entitled to protection.
We wish to emphasize that our holding is in no way dependent upon the specific Fifth Amendment privilege against self-incrimination, which we concede may not be applicable to this case. Tehan v. Shott, supra.
Comment on the failure of the accused to testify or, as here, his refusal to cooperate with the police, now clearly constitutes a violation of the Fifth Amendment whose strictures are - at least in this respect - equally applicable to the states. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Griffin v. State of California, supra; Miranda v. State of Arizona, 384 U.S. 436 at p. 468 n. 37, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). If the jury is permitted to draw an inference from these omissions, a heavy penalty on the invocation of the privilege results and the integrity of the constitutional protection is seriously impaired.
However, even though the Fifth Amendment privilege is not designed primarily to ensure the validity of the truth-ascertainment process, but rather to safeguard a more fundamental constitutional guarantee of individual freedom, the Supreme Court has held its applicability to the states prospective only. Tehan v. Shott, supra; see Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56 (1965). But the Supreme Court's rules regarding involuntary confessions are available without regard to when the objectionable conduct may have occurred. Johnson v. State of New Jersey, supra. Indeed, we think that even in a legal universe without a privilege against self-incrimination, relator could not have been required by the police to confirm or deny the accusatory statements - or suffer for his silence. Cf. Brown v. State of Mississippi, 297 U.S. 278, 285-286, 56 S. Ct. 461, 80 L. Ed. 682 (1936).
Relator here was exposed to specific factual accusations, which, we must assume, he refused to confirm or deny. Under the tacit admission fiction, the jury was permitted to find that he adopted those accusatory statements as true. In effect, the relator was forced to confess as surely as if the police had guided his hand to sign an inculpatory statement which they had prepared. To conclude that the absence of a verbal response can be used to incriminate an accused when it is clear that there was no desire to concede anything is to sanction the use of a confession which is rendered involuntary by the very principle of state law which makes it admissible. Indeed, involuntariness is the hallmark of the tacit confession rule and so, we think, its inherent constitutional infirmity. For although it is said that silence bespeaks guilt, the Constitution clearly will not permit an unspoken admission to be used against the accused who seals his lips against the challenging menace of police inquiry. See Note, 79 Harv.L.Rev. 935, 1042-1043 (1966).
Second, we believe that, at least in this case, the tacit admission is objectionable as well on more general due process grounds. The ambiguities which surround such evidence deprive the finder of fact of reliable guides with which to draw reasonable inferences of fact. See, Note, 79 Harv.L.Rev. 935, 1043-1044 (1966). This evil is especially pronounced here.
The police were allowed to relate on the witness stand what relator's accomplices had said in his presence and his reaction upon hearing these supposed accusations. The record shows that there was a marked discrepancy between these oral statements and the written statements taken from Young and Collins, which were also introduced into evidence. Thus, it is not even entirely clear what Smith was confronted with when he did whatever he did - or did not do. If the accusations were of no greater force than those in the written statements, it might be easily understood why Smith would say nothing - his accomplices' remarks were inconclusive. On the other hand, if the recollection of the police as to the oral statements was correct, relator would be more likely to have denied them because they seemed more damaging to him. Smith, of course, testified that he did deny the statements. The police heard no such denial.
To the written statements, they said he remained mute. To the oral statements, they said he clenched his lips and shook his head. Was this a flat denial? A sign of determination to say nothing until he received the assistance of counsel? The sign of disgust at his accomplices' mendacity? Or was it, as the trial judge promptly characterized the movement, an indication of "consternation"?
We hold that under circumstances such as these, any attempt to verbalize relator's virtual inaction cannot, as a matter of due process, be condoned.
It cannot be inferred from these facts that the relator either denied or affirmed the accusatory statements. Indeed, his state of mind might have been such that he had resolved to say or do nothing until arraigned and afforded counsel. Even if the police alone are wholly to be believed, we can draw no inference one way or the other from relator's reactions to the statements, nor, we think, could the jury properly do so. It must be borne in mind that under the trial court's instructions, a denial could not be considered by the jury. Thus, the finder of fact was required to ascertain whether relator's response was a denial or affirmance. We hold that it could not logically do so. To permit the jury to speculate wildly on a matter affecting relator's very life and liberty was constitutionally impermissible.
Pennsylvania has now abandoned prospectively
the tacit confession as an evidentiary device for the ascertainment of guilt. But this pernicious rule has perverted the pursuit of justice in the past as well. We respect the judgment of the courts of the Commonwealth, but we cannot in good conscience allow a conviction to stand upon evidence improperly obtained and so glaringly unreliable. Due process demands that the writ be granted.
The relator also alleged as a ground for granting the writ certain prejudicial remarks by the trial judge in the course of his charge.
What we have said above renders unnecessary a decision on the merits of this objection. However, by the same token, we do not wish our silence on this issue to be construed as tacit approval of the trial court's conduct. Therefore, we will reserve ruling on this point now.
We wish to express our gratitude to relator's court-appointed counsel, Robert J. Sugarman, Esquire, whose efforts evidenced both a high sense of purpose and the professional competence with which to fulfill that purpose.