CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
Burger, C. J., delivered the opinion of the Court, in which Harlan, Stewart, White, and Blackmun, JJ., joined. Black, J., dissented. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 226.
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 establish the prosecution's case in chief under Miranda 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 selling heroin to an undercover
police officer. At a subsequent jury trial the officer was the State's chief witness, and he testified as to details of the two 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 baking powder and part of a scheme to defraud the purchaser.
On cross-examination petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7 -- statements that partially contradicted petitioner's direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually 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 read 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 credibility and not as evidence of guilt. In closing summations both counsel argued the substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment.*fn1 The New York Court of Appeals affirmed in 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 statements allegedly made by petitioner,
conceding that they were inadmissible under Miranda 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. ...