VAIDIK, J.
3. Impeachment with Post-Arrest Silence
The State asked the following questions when cross-examining Marlow:
Q: And, after these charges were filed against you . . .
A: Yes sir.
Q: Did you go to Officer Roberts and say hey this is what happened? I wasn’t there?
A: No sir. I—
Q: Why didn’t you do that?
A: I feel John Roberts has something against me, sir.
Q: (inaudible)
A: (inaudible) personally, I don’t know. I feel that—
Q: Could you go to another law enforcement officer or they all—
A: —I-I don’t—
Q: —got something against you?
A: know nothing about it. What should I have had done? I have—
Q: Well you’re charged with a crime, don’t you want to go in and say hey this is a big mistake, here’s the story?
A: Yes sir. I went in. I went in and I, I had, my dad had told me this after he had bonded out of jail because I, I was not even arrested that night.
Q: But—
A: So.
Q: —you never went in to give them-to give a statement, did you? Tell your side?
A: They never asked me for a statement.
Q: But you didn’t come forward, did you?
A: As in how? To tell them about what had happened? No sir.
Q: Mr. Lainhart, do you want this Jury to believe everything you’re saying, don’t you?
Tr. p. 179-80. Marlow argues that the State improperly impeached him with his post-arrest silence.
The use for impeachment purposes of a defendant’s silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 619 (1976). “[W]hile 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.” Id. at 618. However, the Due Process Clause does not prohibit impeachment using a defendant’s pre-arrest silence, Jenkins v. Anderson, 447 U.S. 231, 240 (1980), or his post-arrest, pre-Miranda silence, Fletcher v. Weir, 455 U.S. 603, 607 (1982). See also Brecht v. Abrahamson, 507 U.S. 619, 628-29 (1993) (illustrating these rules). The rationale is that Doyle protections do not attach “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings.” Fletcher, 455 U.S. at 606-07. States may enforce more restrictive evidentiary rules which prohibit use of pre-Miranda silence for impeachment purposes. Jenkins, 447 U.S. at 240; Fletcher, 455 U.S. at 607. But Indiana has apparently declined to do so and remains aligned with the federal constitutional standards. See, e.g., Teague v. State, 891 N.E.2d 1121, 1125-26 (Ind. Ct. App. 2008). Where a defendant asserts a Doyle violation, he “ordinarily bears the burden of showing that Miranda warnings were given prior to the post-arrest silence used by the state for impeachment purposes.” 3 Wayne R. LaFave, Criminal Procedure § 9.6(a) n.47 (3d ed. 2007); see also Fletcher, 455 U.S. at 605 (finding no Doyle violation, where the record did not indicate that the defendant received any Miranda warnings during the period in which he remained silent immediately after his arrest).
Marlow was charged in this case on October 31, 2007. He was not arrested until November 11. On cross-examination the State asked Marlow why he failed to come forward with his side of the story “after these charges were filed against [him].” We understand the State’s questions as referring to the time immediately after Marlow was charged and thus before he was arrested. Under Jenkins, the State was not prohibited from impeaching Marlow with his pre-arrest silence. Even if we construe the State’s questions as covering the time after Marlow was arrested, we have no indication at what point Marlow was Mirandized for purposes of a Doyle/Fletcher analysis. Marlow therefore fails to meet his burden of showing that he received Miranda warnings prior to the silence with which he was impeached. Accordingly, we find no Doyle violation and hold that the State’s cross-examination was not improper.
BAILEY, J., and BRADFORD, J., concur.