Griffin v. State of California, 202
Decision Date | 28 April 1965 |
Docket Number | No. 202,202 |
Citation | 14 L.Ed.2d 106,380 U.S. 609,85 S.Ct. 1229 |
Parties | Eddie Dean GRIFFIN, Petitioner, v. STATE OF CALIFORNIA |
Court | U.S. Supreme Court |
See381 U.S. 957, 85 S.Ct. 1797.
Morris Lavine, Los Angeles, Cal., for petitioner.
Albert W. Harris, Jr., San Francisco, Cal., for respondent.
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 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 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?
'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.
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, 84 S.Ct. 1926, 12 L.Ed.2d 1043, 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, 84 S.Ct. 1489, 12 L.Ed.2d 653, decided after the Supreme Court of California had affirmed the present conviction.3 If this were a federal trial, reversible error would have been committed.Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650, 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 seeAdamson v. People of State of California, 332 U.S. 46, 50, n. 6, 67 S.Ct. 1672, 1674, 91 L.Ed. 1903;Bruno v. United States, 308 U.S. 287, 294, 60 S.Ct. 198, 200, 84 L.Ed. 257.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:
149 U.S., p. 66, 13 S.Ct. p. 766.
If the words 'fifth Amendment' are substituted for 'act' and for 'statute' the spirit of the Self-Incrimina- tion 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, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, 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 consitutional 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 infer- ence of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself:
Id., p. 453, 42 Cal.Rptr., p. 427, 398 P.2d, p. 763.
THE CHIEF JUSTICE took no part in the decision of this case.
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, 84 S.Ct. 1489, 12 L.Ed.2d 653, that the Fifth Amendment ap- plies 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. State of Texas, 380 U.S. 400. at 408, 85 S.Ct. 1065, at 1070.
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, this page, fully demonstrates that the nocomment rule 'might be lost, and justice still be done,'Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.As a 'non-fundamental' part of the Fifth Amendment( ), 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:
Malloy v. Hogan, supra, 378 U.S. at 11, 84 S.Ct. at 1495.(Emphasis added.)
My answer then (378 U.S., at 27, 84 S.Ct. at 1503) and now is that 'incongruity,' within the limits of fundamental fairness, is at the heart of our federal system.The powers and responsibilities of the State and Federal Governments are not congruent, and under the Constitutionthey are not intende to be.
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