380 U.S. 609 (1965), 202, Griffin v. California

Docket Nº:No. 202
Citation:380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106
Party Name:Griffin v. California
Case Date:April 28, 1965
Court:United States Supreme Court

Page 609

380 U.S. 609 (1965)

85 S.Ct. 1229, 14 L.Ed.2d 106




No. 202

United States Supreme Court

April 28, 1965

Argued March 9, 1965



Comment to the jury by a prosecutor in a state criminal trial upon a defendant's failure to testify as to the matters which he can reasonably be expected to deny or explain because of facts within his knowledge or by the court that the defendant's silence under those circumstances evidences guilt violates the Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution, as made applicable to the States by the Fourteenth, Malloy v. Hogan, 378 U.S. 1. 610-615.

60 Cal.2d 182, 383 P.2d 432, reversed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner was convicted of murder in the first degree after a jury trial in a California court. He did not testify at the trial on the issue of guilt, though he did testify at the separate trial1 on the issue of penalty. The trial court instructed the jury on the issue of guilt, stating

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that a defendant has a constitutional right not to testify. But it told the jury:2

As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.

It added, however, that no such inference could be drawn as to evidence respecting which he had no knowledge. It stated that failure of a defendant to deny [85 S.Ct. 1231] or explain the evidence of which he had knowledge does not create a presumption of guilt, nor, by itself, warrant an inference of guilt nor relieve the prosecution of any of its burden of proof.

Petitioner had been seen with the deceased the evening of her death, the evidence placing him with her in the alley where her body was found. The prosecutor made much of the failure of petitioner to testify:

The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.

What kind of a man is it that would want to have sex with a woman that beat up is she was beat up at the time he left?

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He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor, because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.

These things he has not seen fit to take the stand and deny or explain.

And, in the whole world, if anybody would know, this defendant would know.

Essie Mae is dead; she can't tell you her side of the story. The defendant won't.

The death penalty was imposed, and the California Supreme Court affirmed. 60 Cal.2d 182, 32 Cal.Rptr. 24, 383 P.2d 432. The case is here on a writ of certiorari which we granted, 377 U.S. 989, to consider whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan, 378 U.S. 1, decided after the Supreme Court of California had affirmed the present conviction.3

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[85 S.Ct. 1232] If this were a federal trial, reversible error would have been committed. Wilson v. United States, 149 U.S. 60, so holds. It is said, however, that the Wilson decision rested not on the Fifth Amendment, but on an Act of Congress, now 18 U.S.C. § 3481.4 That indeed is the fact, as the opinion of the Court in the Wilson case states. And see Adamson v. California, 332 U.S. 46, 50, n. 6;

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Bruno v. United States, 308 U.S. 287, 294. But that is the beginning, not the end, of our inquiry. The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.

We think it does. It is, in substance, a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made, as in other situations, but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance. The Court in the Wilson case stated:

. . . the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to everyone, and not wish to be witnesses. It is not everyone who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character and offenses charged against him will often confuse and embarrass him to such a degree as to increase, rather than remove, prejudices against him. It is not everyone, however, honest, who would therefore willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be witnesses, particularly when they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him.

149 U.S. p. 66.

If the words "fifth Amendment" are substituted for "act" and, for "statute," the spirit of the Self-Incrimination

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Clause is reflected. For comment on the refusal to testify is a remnant of the "inquisitorial system of criminal justice," Murphy v. Waterfront Comm., 378 U.S. 52, 55, which the Fifth Amendment outlaws.5 It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is, in any event, natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. People v. Modesto, 62 Cal.2d 436, 452-453, 42 Cal.Rptr. 417, 426-427, 398 P.2d 753, 762-763. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another. That the inference

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of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself:

Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him (Code Civ.Proc. § 2051), and not that he is unable to deny the accusations. It is true that the defendant might fear that his prior convictions will prejudice the jury, and therefore another possible inference can be drawn from his refusal to take the stand.

Id. p. 453, 42 Cal.Rptr., p. 427, 398 P.2d, p. 763.

We said in Malloy v. Hogan, supra, p. 11, that "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." We take that in its literal sense, and hold that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.6


THE CHIEF JUSTICE took no part in the decision of this case.

HARLAN, J., concurring

MR. JUSTICE HARLAN, concurring.

I agree with the Court that, within the federal judicial system, the Fifth Amendment bars adverse comment by federal prosecutors and judges on a defendant's failure to take the stand in a criminal trial, a right accorded him by that amendment. And given last Term's decision in Malloy v. Hogan, 378 U.S. 1, that the Fifth Amendment applies

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to the States in all its refinements, I see no legitimate escape from today's decision and therefore concur in it. I do so, however, with great reluctance, since, for me, the decision exemplifies the creeping paralysis with which this Court's recent adoption of the "incorporation" doctrine is infecting the operation of the federal system. See my opinion concurring in the result in Pointer v. Texas, 380 U.S. 400, at 408.

[85 S.Ct. 1234] While I would agree that the accusatorial, rather than inquisitorial, process is a fundamental part of the "liberty" guaranteed by the Fourteenth Amendment, my Brother STEWART, in dissent, post, p. 617, fully demonstrates that the no-comment rule "might be lost, and justice still be done," Palko v. Connecticut, 302 U.S. 319, 325. As a "non-fundamental" part of the Fifth Amendment (cf. my opinion concurring in the result in Pointer, 380 U.S. at 409), I would not, but for Malloy, apply the no-comment rule to the States.

Malloy put forward a single argument for applying the Fifth Amendment, as such, to the States:

It would be incongruous to have different standards determine the validity of a claim of privilege . . ., depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.

Malloy v. Hogan, supra, at 11. (Emphasis added.)

My answer then (378 U.S. at 27) and now is that "incongruity," within the limits of fundamental fairness, is at the heart of our...

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