Lakeside v. Oregon

• Citation: 435 U.S. 333,55 L.Ed.2d 319,98 S.Ct. 1091
• Decision Date: 22 March 1978
• Docket Number: No. 76-6942,76-6942
• Parties: Ensio Ruben LAKESIDE, Petitioner, v. State of OREGON
• Court: United States Supreme Court

435 U.S. 333

98 S.Ct. 1091

55 L.Ed.2d 319

Ensio Ruben LAKESIDE, Petitioner,

v State of OREGON.

No. 76-6942.

Argued Jan. 18, 1978.

Decided March 22, 1978.

Syllabus

1. The giving by a state trial judge, over a criminal defendant's objection, of a cautionary instruction that the jury is not to draw any adverse inference from the defendant's decision not to testify in his behalf does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. Pp. 336-341.

(a) Though in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the Court stated that "comment on the refusal to testify" violates the constitutional privilege, the Court was there concerned only with adverse comment, whereas here the very purpose of the instruction is to remove from the jury's deliberations any influence of unspoken adverse inferences. Pp. 338-339.

(b) Petitioner's contention that such an instruction may encourage adverse inferences in a trial like his, where the defense was presented through several witnesses, would require indulgence, on which federal constitutional law cannot rest, in the dubious speculative assumptions (1) that the jurors have not noticed defendant's failure to testify and will not therefore draw adverse inferences on their own; and (2) that the jurors will totally disregard the trial judge's instruction. Pp. 339-340.

2. The challenged instruction does not deprive the objecting defendant of his right to counsel by interfering with his attorney's trial strategy. To hold otherwise would implicate the right to counsel in almost every permissible ruling of a trial judge if made over the objection of the defendant's lawyer. Pp. 341-342.

277 Or. 569, 561 P.2d 612, affirmed.

Phillip M. Margolin, Portland, Or., for petitioner.

Thomas H. Denney, Salem, Or., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

The petitioner did not t ke the witness stand at his trial on a criminal charge in a state court. Over his objection the trial judge instructed the jury not to draw any adverse inference from the petitioner's decision not to testify. The question before us is whether the giving of such an instruction over the defendant's objection violated the Constitution.

I

The petitioner was brought to trial in an Oregon court on a charge of escape in the second degree.¹ The evidence showed that he had been an inmate of the Multnomah County Correctional Institution, a minimum-security facility in Multnomah County, Ore. On June 16, 1975, he received a special overnight pass requiring him to return by 10 o'clock the following evening. He did not return. The theory of the defense, supported by the testimony of a psychiatrist and three lay witnesses, was that the petitioner was not criminally responsible for his failure to return to the institution.² At the conclusion of the evidence, the trial judge informed counsel in chambers that he intended to include the following instruction in his charge to the jury:

"Under the laws of this State a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence."

Defense counsel objected to the giving of that instruction, and, after it was given, the following colloquy took place in chambers:

"[Defense Counsel]: . . . I have one exception.

"I made this in Chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn't have to take the stand, because I felt that that's like waving a red flag in front of the jury. . . .

"THE COURT: The defendant did orally request the Court just prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf.

"The Court felt that it was necessary to give that instruction in order to properly protect the defendant, and therefore, the defendant may have his exception."

The Oregon Court of Appeals reversed the petitioner's conviction and ordered a new trial on the ground that "the better rule is to not give instructions ostensibly designed for defendant's benefit over the knowledgeable objection of competent defense counsel." 25 Or.App. 539, 542, 549 P.2d 1287, 1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection of counsel did not violate the constitutional rights of the defendant. 277 Or. 569, 561 P.2d 612.

The petitioner then sought review in this Court, claiming that the instruction infringed upon both his constitutional privilege not to be compelled to incriminate himself, and his constitutional right to the assistance of counsel. Because of conflicting decisions in several other courts,³ we granted certiorari, 434 U.S. 889, 98 S.Ct. 391, 54 L.Ed.2d 275.

II

A.

The Fifth Amendment commands that no person "shall be compelled in any criminal case to be a witness against himself." This guarantee was held to be applicable against the States through the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.⁴ That case, decided in 1964, established that "the same standards" must attach to the privilege "in either a federal or state proceeding." Id., at 11, 84 S.Ct., at 1495. Less than a year later the Court held in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 12 L.Ed.2d 653, that it is a violation of this constitutional guarantee to tell a jury in a state criminal trial that a defendant's failure to testify supports an unfavorable inference against him.⁵

In Griffin, the prosecutor had encouraged the jury to draw adverse inferences from the defendant's failure to respond to the testimony against him. And the trial judge had instructed the jury that as to evidence which the defendant might be expected to explain, his failure to testify could be taken " '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.' " Id., at 610, 85 S.Ct., at 1230. In setting aside the judgment of conviction, the Court held that the Constitution "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id., at 615, 85 S.Ct., at 1233.⁶

The Griffin opinion expressly reserved decision "on whether an accused can require . . . that the jury be instructed that his silence must be disregarded." Id., at 615, 85 S.Ct., at 1233 n. 6. It is settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Or 610, 303 P.2d 513.⁷ The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect an erroneous statement of the law. His argument is, quite simply, that this protective instruction becomes constitutionally impermissible when given over the defendant's objection.

In the Griffin case, the petitioner argues, the Court said that "comment on the refusal to testify" violates the constitutional privilege against compulsory self-incrimination, 380 U.S., at 614, 85 S.Ct., at 1232, and thus the "comment" made by the trial judge over the defendant's objection in the present case was a literal violation of the language of the Griffin opinion.⁸ Quite apart from this semantic argument, the petitioner contends that it is an invasion of the privilege against compulsory self-incrimination, as that privilege was perceived in the Griffin case, for a trial judge to draw the jury's attention in any way to a defendant's failure to testify unless the defendant acquiesces. We cannot accept this argument, either in terms of the language of the Griffin opinion or in terms of the basic postulates of the Fifth and Fourteenth Amendments.

It is clear from even a cursory review of the facts and the square holding of the Griffin case that the Court was there concerned only with adverse comment, whether by the prosecutor or the trial judge—"comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id., at 615, 85 S.Ct., at 1233. The Court reasoned that such adverse comment amounted to "a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Id., at 614, 85 S.Ct., at 1232.

By definition, "a necessary element of compulsory self-incrimination is some kind of compulsion." Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 414, 17 L.Ed.2d 374. The Court concluded in Griffin that unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant's failure to take the witness stand.⁹ But a judge's instruction that the jury must draw no adverse inferences of any kind from the defendant's exercise of his privilege not to testify is "comment" of an entirely different order. Such an instruction cannot provide the pressure on a defendant found impermissible in Griffin. On the contrary, its very purpose is to remove from the jury's deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.

The petitioner maintains, however, that whatever beneficent effect such an instruction may have in most cases, it may in some cases encourage the jury to draw adverse inferences from a defendant's silence, and, therefore, it cannot constitutionally be given in any case when a defendant objects to...