BAILEY, J.
Akard’s silence while the police were entering his apartment was mentioned four times during trial: briefly during the prosecutor’s opening and closing arguments and during the testimony of two police officers in the State’s case-in-chief. Questions asked of the two officers were whether Akard made any statements or asked any questions when he was arrested to which both officers responded in the negative.
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In Doyle v. Ohio, 426 U.S. 610 (1976)], the U.S. Supreme Court held that using a defendant’s silence, which occurred after arrest and receiving Miranda warnings, for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. Id. at 619. The underlying rationale was that use of a defendant’s post-arrest, post-Miranda silence to impeach an explanation subsequently offered at trial would be contrary to the Miranda warnings’ implicit assurance to an individual in police custody that silence will carry no penalty. Id. at 618. The U.S. Supreme Court distinguished Doyle when it addressed the facts in Fletcher v. Weir, 455 U.S. 603 (1982). Fletcher involved the use of post-arrest silence of the defendant by the state to impeach the defendant’s theory of self-defense that was belatedly advanced at trial. Id. at 603-04. In distinguishing Doyle, the Supreme Court reasoned that the “significant difference between the present case and Doyle is that the record does not indicate that [the defendant] received any Miranda warnings during the period in which he remained silent immediately after his arrest.” Id. at 605. Relying on this difference, the Court held that, absent the implicit assurance embodied in Miranda warnings, impeachment by prior silence is permissible. Id. at 606-07.
Here, the State used Akard’s post-arrest, pre-Miranda silence as substantive evidence in its case-in-chief as opposed to impeaching the defendant on cross-examination. The Seventh Circuit addressed this scenario in United States v. Hernandez and concluded that, even if the defendant testifies at trial, it is a violation of the Fifth Amendment for the State to introduce evidence of the defendant’s post-arrest, pre-Miranda silence in its case-in-chief. Hernandez, 948 F.2d at 323. Thus, the questions directed to the police officers regarding Akard’s silence after his arrest but before being read his rights were used as an improper inference of Akard’s guilt, in violation of the Fifth Amendment.
BAKER, C.J., and ROBB, J., concur.