401 U.S. 222 Harris v. New York CERTIORARI TO THE COURT OF APPEALS OF NEW YORK No.

206Argued:December 17, 1970--- Decided:February 24, 1971 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ in this case to consider petitioner's claim that a statement made by him to police under circumstances rendering it inadmissible to establis h the prosecution's case in chief underMiranda v. Arizona,384 U.S. 436(1966), may not be used to impeach his credibility. The State of New York charged petitioner in a two-count indictment with twice se lling heroin to an undercover[p223]police officer. At a subsequent jury trial, the officer was the State's chief witness, and he testified as to details of the tw o sales. A second officer verified collateral details of the sales, and a third offered testimony about the chemical analysis of the heroin. Petitioner took the stand in his own defense. He admitted knowing the undercover police officer, but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6, but claimed it was b aking powder and part of a scheme to defraud the purchaser. On cross-examination, petitioner was askedseriatimwhether he had made specified st atements to the police immediately following his arrest on January 7 -- statemen ts that partially contradicted petitioner's direct testimony at trial. In respon se to the cross-examination, petitioner testified that he could not remember vir tually any of the questions or answers recited by the prosecutor. At the request of petitioner's counsel, the written statement from which the prosecutor had re ad questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury. The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner's credibil ity, and not as evidence of guilt. In closing summations, both counsel argued th e substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment.[n1]The New York Court of Appeals affirmed i n a per curiam opinion, 25 N.Y.2d 175, 250 N.E.2d 349 (1969). At trial, the prosecution made no effort in its case in chief to use the stateme nts allegedly made by petitioner,[p224]conceding that they were inadmissible underM iranda v. Arizona,384 U.S. 436(1966). The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the po lice were coerced or involuntary. Some comments in theMirandaopinion can indeed be read as indicating a bar to use o f an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding, and cannot be regarded as controlling.M irandabarred the prosecution from making its case with statements of an accused m ade while in custody prior to having or effectively waiving counsel. It does not follow fromMirandathat evidence inadmissible against an accused in the prosecutio n's case in chief is barred for all purposes, provided of course that the trustw orthiness of the evidence satisfies legal standards. InWalder v. United States,347 U.S. 62(154), the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes. It is one thing to say that the Government cannot make an affirmative use of evi dence unlawfully obtained. It is quite another to say that the defendant can tur n the illegal method by which evidence in the Government's possession was obtain ed to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of theWeeksdoctrine would be a perversion of t heFourth Amendment. [T]here is hardly justification for letting the defendant affirmatively resort t o perjurious testimony in reliance on the Government's disability to challenge h is credibility.

347 U.S. at 65.[p225] It is true that Walder was impeached as to collateral matters included in his di rect examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a differ ence in principle that warrants a result different from that reached by the Cour t inWalder.Petitioner's testimony in his own behalf concerning the events of Janua ry 7 contrasted sharply with what he told the police shortly after his arrest. T he impeachment process here undoubtedly provided valuable aid to the jury in ass essing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible pol ice conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows whe n the evidence in question is made unavailable to the prosecution in its case in chief. Every criminal defendant is privileged to testify in his own defense, or to refu se to do so. But that privilege cannot be construed to include the right to comm it perjury.See United States v. Knox,396 U.S. 77(1969);cf. Dennis v. United States,38 4 U.S. 855(1966). Having voluntarily taken the stand, petitioner was under an obl igation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.[n2]H ad[p226]inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. The shield provided byMirandacannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent ut terances. We hold, therefore, that petitioner's credibility was appropriately im peached by use of his earlier conflicting statements. Affirmed. MR. JUSTICE BLACK dissents. 1.No agreement was reached as to the first count. That count was later dropped by the State. 2.If, for example, an accused confessed fully to a homicide and led the police to the body of the victim under circumstances making his confession inadmissible, the petitioner would have us allow that accused to take the stand and blandly de ny every fact disclosed to the police or discovered as a "fruit" of his confessi on, free from confrontation with his prior statements and acts. The voluntarines s of the confession would, on this thesis, be totally irrelevant. We reject such an extravagant extension of the Constitution. Compare Killough v. United States , 114 U.S.App.D.C. 305, 315 F.2d 241 (1962).