Deferrals Are Not Silence: Arizona Supreme Court OKs Impeachment With Post‑Miranda “Pass/Hold” Responses When No Unambiguous Invocation and the Suspect Later Speaks

Case: State of Arizona v. Giovani Fuster Melendez

Court: Supreme Court of the State of Arizona

Date: March 28, 2025

Disposition: Court of Appeals opinion vacated; convictions and sentences affirmed

Introduction

In a decision with significant implications for custodial interrogations and trial impeachment, the Arizona Supreme Court held that the State may use a defendant’s post‑Miranda statements—including the defendant’s temporary “deferrals” (e.g., “I’ll pass,” “I want to hold that information for now”)—to impeach the defendant at trial, so long as the defendant never unambiguously invoked the right to remain silent and ultimately spoke to the substantive matters at issue during the same interview.

The case arises from an aggravated assault and endangerment prosecution against Giovani Fuster Melendez. After initially invoking his right to silence during a first custodial interview, Melendez participated in a second interview following fresh Miranda warnings. In that second conversation, he repeatedly “passed” on certain questions before later offering a detailed account, admitting the shooting and claiming self‑defense. At trial, the prosecution cross‑examined him about those earlier deferrals and argued in closing that his hesitancy undermined his self‑defense credibility. The court of appeals deemed this a due process violation under Doyle v. Ohio; the Supreme Court disagreed, vacating the appellate decision.

The principal questions were: (1) whether Melendez’s “pass/hold” statements constituted an invocation of the Fifth Amendment right to silence; (2) whether the State’s use of those deferrals for impeachment violated due process under Doyle’s prohibition on using post‑Miranda silence; and (3) whether, even absent a constitutional violation, evidentiary principles (Arizona Rule of Evidence 403) required exclusion.

Summary of the Opinion

Writing for the Court, Vice Chief Justice Lopez concluded:

No unambiguous invocation: In the second, fully Mirandized interview, Melendez did not unequivocally invoke his right to remain silent. His statements that he wanted to “hold” or “pass” on certain questions “for now,” coupled with his affirmations that he did not mind talking and his later detailed account, amounted to tactical deferrals—not an invocation. (Berghuis v. Thompkins; Salinas v. Texas.)
No Doyle due process violation: Because Melendez ultimately answered the substantive questions and asserted self‑defense in the same interview, he did not remain silent “as to the subject matter of his statements.” Thus, the prosecution’s impeachment was more akin to permissible use of prior statements and omissions under Anderson v. Charles than the prohibited use of silence under Doyle v. Ohio.
State evidentiary law: With no constitutional violation, the issue reverted to Rule 403. The Court held the probative value of the interview exchanges—showing the timing and context of Melendez’s self‑defense claim—was not substantially outweighed by unfair prejudice. United States v. Hale (relying on complete silence) was distinguishable.
Open question preserved: The Court expressly left for another day whether “selective silence” (deferring to some questions) would trigger Doyle concerns if the suspect never subsequently provides the substance of those answers in the same interview.
Outcome: The court of appeals’ reversal was vacated; the convictions and sentences were affirmed.

Analysis

Precedents Cited and Their Role

Miranda v. Arizona (1966): Establishes the requirement to advise custodial suspects of their rights, including the right to remain silent. The Court reiterates that Miranda safeguards the Fifth Amendment privilege against compelled self‑incrimination, but are not “self‑executing”—the suspect must invoke them.
Salinas v. Texas (2013): The privilege generally is not self‑executing; a witness must claim it. Silence alone—without an express invocation—is ordinarily insufficient to put police on notice of reliance on the Fifth Amendment.
Berghuis v. Thompkins (2010): An invocation must be unequivocal and unambiguous; extended silence by itself does not invoke the right. Speaking after warnings is treated as a waiver by conduct.
Michigan v. Mosley (1975): Once the right to silence is invoked, police must cease questioning. This underscores why clarity of invocation matters.
Doyle v. Ohio (1976): Due process prohibits impeachment with a defendant’s post‑Miranda silence because the warnings imply that remaining silent will not be penalized.
Anderson v. Charles (1980): No Doyle issue where the State impeaches a defendant with prior inconsistent statements; if the defendant voluntarily spoke after warnings, he has not remained silent on that subject matter, and references to omissions are part of testing consistency.
Jenkins v. Anderson (1980): Cited by the Court as part of the no‑comment rule on post‑invocation silence; more broadly, Jenkins permits impeachment with pre‑arrest silence but distinguishes post‑Miranda protected silence.
Arizona cases distinguishing invocation versus silence:
- State v. Sorrell (1982): Prosecutors may not comment on silence after an actual invocation; inapposite here because Melendez did not unambiguously invoke in the second interview.
- State v. Routhier (1983): Commentary impermissible on matters about which defendant gave no information after expressly invoking rights; permissible to impeach from volunteered, pre‑invocation statements. Again, distinguishable because Melendez never invoked and later discussed the very topics he had deferred.
- State v. Maturana (1994) and State v. Reinhold (1979): Where the defendant never invoked, the State may comment on selective silence (i.e., choosing to answer some questions but not others). The Court notes this line but limits today’s holding to “deferrals” that were later answered.
- State v. Tuzon (1978): Permits impeachment with omissions from a defendant’s post‑Miranda narrative when facts later asserted at trial were not mentioned earlier.
United States v. Hale (1975): Silence at arrest is generally low in probative value and risks unfair prejudice; distinguished because Hale addressed absolute silence, whereas Melendez spoke extensively and ultimately addressed the deferred topics.

The Court’s Legal Reasoning

No unequivocal invocation during the second interview.
The Court begins under the Fifth Amendment framework. After first invoking his rights in an initial interview (“I don’t want to talk anymore”), Melendez later received fresh warnings and agreed to speak in a second interview. There, he repeatedly said he would “hold” or “pass” on answers “for now,” simultaneously signaling openness to continue (“I don’t mind talking to you”) and later providing a detailed account that admitted the shooting and claimed self‑defense. Under Berghuis and Salinas, an invocation must be unequivocal. The Court characterizes these statements as tactical deferrals, not a rights invocation. Importantly, Melendez demonstrated he knew how to unambiguously invoke because he had successfully done so earlier.
No Doyle violation because there was no “silence” on the subject matter.
Doyle guards against fundamental unfairness in using post‑Miranda silence to impeach. But here, Melendez “did not remain silent at all,” at least as to the topics that mattered: his presence, actions, motive, and asserted self‑defense. This situates the case squarely within Anderson v. Charles, where the problem is not penalizing silence but testing the credibility and timing of a defendant’s narrative. The prosecutor’s references to the “deferrals” were part of an argument that Melendez was stalling to hear what others had said and only later framed his actions as self‑defense. The Court emphasizes that the impeachment relied “primarily on his words”—including the deferrals themselves and the subsequent admission/self‑defense claim—rather than inviting the jury to draw adverse inferences from true silence.
Distinguishing Arizona precedents.
The Court of Appeals had leaned on Sorrell and Routhier. The Supreme Court explains that those cases involved express invocations; commenting on what defendants did not say after invocation is forbidden. Here, there was no invocation, and, critically, Melendez later answered the very questions he had initially “passed” on. The pre‑Doyle cases (Shing, Anderson, Ward) likewise featured defendants who refused to speak and saved their stories for trial—unlike Melendez.
Unresolved “selective silence” question flagged but not decided.
The Court candidly notes a split among other courts on whether Doyle bars the use of post‑Miranda “selective silence.” While it acknowledges Arizona decisions like Maturana and Reinhold, it declines to adopt a broad rule. Instead, it limits today’s holding: where the defendant’s “deferrals” are followed by substantive answers in the same interview, there is no “silence” to penalize.
Rule 403 balancing: probative value outweighs prejudice.
Having found no Doyle violation, the Court turns to evidentiary law. The timing and tenor of Melendez’s eventual self‑defense narrative—after repeated deferrals—was probative of credibility. The risk of unfair prejudice did not substantially outweigh that probative value. Hale is distinguishable because it involved absolute silence; Melendez spoke on the very topics at issue.
Fundamental error review.
Because Melendez did not object at trial, the Court reviews for fundamental error. The analysis ends at step one: there was no error, so there can be neither fundamental error nor prejudice. The convictions and sentences stand.

Concurring Opinions: Competing Views on Miranda’s Status

Justice Bolick (concurring): Agrees with the outcome but contends that Miranda’s “prophylactic” rules exceed the U.S. Supreme Court’s authority to bind state procedures unless required by the Constitution itself. Citing Vega v. Tekoh (2022), he urges a focus on the Fifth Amendment’s core—coercion—rather than Miranda formalities, and suggests states could consider different approaches (e.g., advising that silence may be used in some circumstances). He critiques Dickerson v. United States (2000) for blurring the constitutional/non‑constitutional line.
Chief Justice Timmer (concurring): Emphasizes that whatever debates exist, Miranda remains binding on state courts under the Supremacy Clause. Dickerson (and Vega’s careful treatment of it) confirms that Miranda’s warnings are obligatory; lower courts may not “chart their own course” away from Miranda until the U.S. Supreme Court says otherwise.

These concurrences highlight an active jurisprudential debate about Miranda’s foundations and future, but they do not alter the majority’s controlling rule concerning impeachment with post‑Miranda deferrals that are later answered.

Impact and Practical Implications

For law enforcement and prosecutors:

When a suspect, after Miranda warnings, does not unambiguously invoke and later provides a narrative on the very topics he initially deferred, prosecutors in Arizona may impeach trial testimony by referencing the sequence of deferrals and later statements.
Interviewers should clearly administer Miranda warnings and document the suspect’s responses. Noting any express willingness to continue (“I don’t mind talking”) will matter.
Prosecutors should frame impeachment as testing consistency and timing—using the suspect’s words and omissions within the same subject matter—rather than urging adverse inferences from true silence.

For defense counsel and suspects:

“Pass/hold for now” is not an invocation. If the intent is to stop questioning, an explicit statement is required, e.g., “I am invoking my right to remain silent and I want a lawyer.”
Once a Mirandized suspect speaks on a topic, omissions and hedging before the eventual narrative may be used to impeach credibility at trial.
Consider pretrial motions in limine grounded in Rule 403. While the Court here found no disproportionate prejudice, case‑specific facts could change that balance.

For trial courts:

When no unequivocal invocation occurs and the defendant later speaks to the deferred subject matter, Doyle generally will not bar impeachment with those exchanges; Rule 403 remains a guardrail.
Jury instructions or limiting instructions may be appropriate in edge cases to cabin improper “penalizing silence” arguments.

Unsettled terrain:

The Court reserved whether “selective silence” triggers Doyle when the suspect never later addresses the subject matter in the same interview. That remains an open question in Arizona.
The broader status of “selective silence” is split nationally (e.g., United States v. Williams vs. United States v. Burns), and future Arizona cases may engage that split if presented with different facts.

Complex Concepts, Simplified

Miranda warnings: Before custodial questioning, police must warn a suspect of the right to remain silent, that statements can be used in court, and the right to counsel.
Invoke unambiguously: The suspect must clearly state an intent to remain silent or want a lawyer; ambiguous statements like “maybe later” or mere silence are not enough.
Doyle violation: It’s a due process violation to use a defendant’s post‑Miranda silence to impeach at trial, because the warnings imply silence won’t be penalized.
Impeachment by prior statement vs. silence: Using what the defendant said (or omitted) when speaking after warnings to test credibility is generally permissible; punishing true silence is not.
Selectively silent: Answering some questions but not others. Whether that is protected “silence” can depend on whether the suspect later addresses the topic and whether rights were invoked.
Waiver by conduct: Speaking after being Mirandized is treated as choosing to waive the rights; continuing to talk usually signals no invocation.
Rule 403 (Arizona): Courts may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice or risk of confusing the jury.
Fundamental error review: When there is no trial objection, appellate courts first ask whether there was error at all; if not, the analysis ends.

Conclusion

State v. Melendez clarifies a key Miranda/Doyle boundary in Arizona: tactical “deferrals” during a post‑Miranda interview are not “silence” when the suspect later addresses those very topics in the same interview. In that circumstance, prosecutors may impeach with the sequence of deferrals and subsequent statements without violating due process, and Rule 403 ordinarily will not bar the evidence. The decision harmonizes Arizona practice with Anderson v. Charles and distinguishes true silence cases under Doyle and Arizona precedents like Sorrell and Routhier.

The Court leaves open—prudently—the harder question: whether “selective silence” in a post‑Miranda interview is protected when the suspect never later provides the substance of the deferred answers. Meanwhile, the concurrences preview an ongoing debate over Miranda’s constitutional footing after Vega v. Tekoh and Dickerson, but the majority’s holding provides immediate, practical guidance: absent an unambiguous invocation, and where the defendant ultimately speaks on point, “deferrals are not silence,” and their use for impeachment does not offend due process.