382 U.S. 406 (1966), 52, Tehan v. Shott

Docket Nº:No. 52
Citation:382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453
Party Name:Tehan v. Shott
Case Date:January 19, 1966
Court:United States Supreme Court
 
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382 U.S. 406 (1966)

86 S.Ct. 459, 15 L.Ed.2d 453

Tehan

v.

Shott

No. 52

United States Supreme Court

Jan. 19, 1966

Argued November 18, 1965

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

In 1961 respondent was tried and convicted in an Ohio court for violation of the Ohio Securities Act. Respondent had not taken the stand, and the prosecutor commented extensively, as permitted by Ohio law, on his failure to testify. The conviction was affirmed by an Ohio court of appeals, the State Supreme Court declined review, and this Court dismissed an appeal and denied certiorari in 1963. Shortly thereafter respondent sought a writ of habeas corpus, alleging various constitutional violations at his trial. The federal District Court dismissed the petition, but the Court of Appeals reversed, noting that, on the day preceding oral argument of the appeal, the Supreme Court, in Malloy v. Hogan, 378 U.S. 1, held that the Fifth Amendment's freedom from self-incrimination is also protected by the Fourteenth against state abridgment, and reasoning that the protection includes freedom from comment on failure to testify. In Griffin v. California, 380 U.S. 609, this Court held that adverse comment on a defendant's failure to testify in a state criminal trial violates the privilege against self-incrimination, and the parties here were requested to brief and argue the question of the retroactivity of that doctrine.

Held: The doctrine of Griffin v. California will not be applied retrospectively. Linkletter v. Walker, 381 U.S. 618, followed. Pp. 409-419.

337 F.2d 990, vacated and remanded.

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STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

In 1964, the Court held that the Fifth Amendment's privilege against compulsory self-incrimination "is also protected by the Fourteenth Amendment against abridgment by the States." Malloy v. Hogan, 378 U.S. 1, 6. In Griffin v. California, decided on April 28, 1965, the Court held that adverse comment by a prosecutor or trial judge upon a defendant's failure to testify in a state criminal trial violates the federal privilege against compulsory self-incrimination, because such comment "cuts down on the privilege by making its assertion costly." 380 U.S. 609, 614. The question before us now is whether the rule of Griffin v. California is to be given retrospective application.

I

In the summer of 1961, the respondent was brought to trial before a jury in an Ohio court upon an indictment charging violations of the Ohio Securities Act.1 The respondent did not testify in his own behalf, and the prosecuting attorney, in his summation to the jury, commented extensively upon that fact.2 The jury found

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the respondent guilty, the judgment of conviction was affirmed by an Ohio court of appeals, and the Supreme Court of Ohio declined further review. 173 Ohio St. 542, 184 N.E.2d 213. The respondent then brought his case to this Court, claiming several constitutional errors but not attacking the Ohio comment rule as such. On May 13, 1963, we dismissed the appeal and denied certiorari, MR. JUSTICE BLACK dissenting. 373 U.S. 240. All avenues of direct review of the respondent's conviction were thus fully foreclosed more than a year before our decision in Malloy v. Hogan, supra, and almost two years before our decision in Griffin v. California, supra.

[86 S.Ct. 461] A few weeks after our denial of certiorari, the respondent sought a writ of habeas corpus in the United States District Court for the Southern District of Ohio, again alleging various constitutional violations in his state trial. The District Court dismissed the petition, and the respondent appealed to the United States Court of Appeals for the Sixth Circuit. On November 10, 1964, that court reversed, noting that,

the day before the oral argument of this appeal, the Supreme Court, in Malloy v. Hogan . . . , reconsidered its previous rulings and held that the Fifth Amendment's exception from self-incrimination is also protected by the Fourteenth Amendment against abridgment by the states,

and reasoning that

the protection against self-incrimination under the Fifth Amendment includes not only the right to refuse to answer incriminating questions, but also the right that such refusal shall not be commented upon by counsel for the prosecution.

337 F.2d 990, 992.

We granted certiorari, requesting the parties "to brief and argue the question of the retroactivity of the doctrine announced in Griffin v. California. . . ." 381 U.S. 923. Since, as we have noted, the original Ohio

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judgment of conviction in this case became final long before Griffin v. California was decided by this Court, that question is squarely presented.3

II

In Linkletter v. Walker, 381 U.S. 618, we held that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, was not to be given retroactive effect. The Linkletter opinion reviewed in some detail the competing conceptual and jurisprudential theories bearing on the problem of whether a judicial decision that overturns previously established law is to be given retroactive, or only prospective, application. MR. JUSTICE CLARK's opinion for the Court outlined the history and theory of the problem in terms both of the views of the commentators and of the decisions in this and other courts which have reflected those views. It would be a needless exercise here to survey again a field so recently and thoroughly explored.4

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Rather, we take as our starting point Linkletter's conclusion that "the accepted rule today is that, in appropriate cases, the Court may, in the interest of justice, make the rule prospective," that there is

no impediment -- constitutional or philosophical -- to the use of the same rule in the constitutional area where the exigencies of the situation require [86 S.Ct. 462] such an application,

in short, that "the Constitution neither prohibits nor requires retrospective effect." Upon that premise, resolution of the issue requires us to

weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.

381 U.S. at 628-629.5

III

Twining v. New Jersey was decided in 1908. 211 U.S. 78. In that case, the plaintiffs in error had been convicted by the New Jersey courts after a trial in which the judge had instructed the jury that it might draw an adverse inference from the defendants' failure to testify. The plaintiffs in error urged in this Court two propositions:

first, that the exemption from compulsory self-incrimination is guaranteed by the Federal Constitution against impairment by the States; and, second, if it be so guaranteed, that the exemption was, in fact, impaired in the case at bar.

211 U.S. at 91. In a lengthy opinion which thoroughly considered both the Privileges and Immunities Clause and the Due Process Clause of the Fourteenth Amendment, the Court held, explicitly and unambiguously,

that the exemption from compulsory self-incrimination in the courts of the States is

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not secured by any part of the Federal Constitution.

211 U.S. at 114. Having thus rejected the first proposition advanced by the plaintiffs in error, the Court refrained from passing on the second. That is, the Court did not decide whether adverse comment upon a defendant's failure to testify constitutes a violation of the federal constitutional right against self-incrimination.6

The rule thus established in the Twining case was reaffirmed many times through the ensuing years. In an opinion for the Court in 1934, Mr. Justice Cardozo cited Twining for the proposition that "[t]he privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state." Snyder v. Massachusetts, 291 U.S. 97, 105. Two years later Chief Justice Hughes, writing for a unanimous Court, reiterated the explicit statements of the rule in Twining and Snyder, noting that

[t]he compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify.

Brown v. Mississippi, 297 U.S. 278, 285. In 1937, the Court again approved the Twining doctrine in Palko v. Connecticut, 302 U.S. 319, 324, 325-326. In Adamson v. California, 332 U.S. 46, the issue was once more presented to the Court in much the same form as it had been presented almost 40 years earlier in Twining. In Adamson, there had been comment

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by Judge and [86 S.Ct. 463] prosecutor upon the defendant's failure to testify at his trial, as permitted by the California Constitution. The Court again followed Twining in holding that the Fourteenth Amendment does not require a State to accord the privilege against self-incrimination, and, as in Twining, the Court did not reach the question whether adverse comment upon a defendant's failure to testify would violate the Fifth Amendment privilege.7 Thereafter, the Court continued to adhere to the Twining rule, notably in Knapp v. Schweitzer, decided in 1958, 357 U.S. 371, 374, and in Cohen v. Hurley, decided in 1961, 366 U.S. 117, 127-129.

In recapitulation, this brief review clearly demonstrates: (1) For more than half a century, beginning in 1908, the Court adhered to the position that the Federal Constitution does not require the States to accord the Fifth Amendment privilege against self-incrimination. (2) Because of this position, the Court, during that period, never reached the question whether the federal guarantee against self-incrimination prohibits adverse comment upon a defendant's failure to testify at his trial.8 Although there were strong dissenting voices,9 the Court made not the slightest deviation from that position during a period of more than 50 years.

Thus matters stood in 1964, when Malloy v. Hogan...

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