Tehan v. United States Shott

CourtUnited States Supreme Court
Citation86 S.Ct. 459,382 U.S. 406,15 L.Ed.2d 453
Docket NumberNo. 52,52
PartiesDan TEHAN, Sheriff of Hamilton County, Ohio, Petitioner, v. UNITED STATES ex rel. Edgar I. SHOTT, Jr
Decision Date19 January 1966

See 383 U.S. 931, 86 S.Ct. 925.

Calvin W. Prem, Cincinnati, Ohio, for petitioner.

Thurman Arnold, Wshington, D.C., for respondent.

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, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653. In Griffin v. State of 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, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106. The question before us now is whether the rule of Griffin v. State of California is to be given retrospective application.


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 the respondent guilty, the judgment of conviction was affirmed by an Ohio court of appeals, and the Supreme Court of Ohio declined further review. State v. Shott, 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. Shott v. Ohio, 373 U.S. 240, 83 S.Ct. 1295, 10 L.Ed.2d 409. 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. State of California, supra.

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. State of California * * *.' Tehan v. U.S. ex rel. Shott, 381 U.S. 923, 85 S.Ct. 1560, 14 L.Ed.2d 683. Since, as we have noted, the original Ohio judgment of conviction in this case became final long before Griffin v. State of California was decided by this Court, that question is squarely presented.3


In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, we held that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 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

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 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, 85 S.Ct. at 1737 1738.5


Twining v. State of New Jersey was decided in 1908. 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. 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: '(f)irst, 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, 29 S.Ct. at 16. 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 not secured by any part of the Federal Constitution.' 211 U.S., at 114, 29 S.Ct., at 26. 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. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 90 A.L.R. 575. 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. State of Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682. In 1937 the Court again approved the Twining doctrine in Palko v. Connecticut, 302 U.S. 319, 324, 325—326, 58 S.Ct. 149, 82 L.Ed. 288. In Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1233, 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 com- ment by judge and 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, 78 S.Ct. 1302, 1304, 2 L.Ed.2d 1393, and in Cohen v. Hurley, decided in 1961, 366 U.S. 117, 127—129, 81 S.Ct. 954, 960—961, 6 L.Ed.2d 156.

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 agaisnt 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 announced that the Fifth Amendment privilege against self-incrimination is protected by the Fourteenth Amend- ment against abridgment by the States (378 U.S., at 6, 84 S.Ct. at 1492). Less than a year later, on April 28, 1965, Griffin v. California held that the Fifth Amendment 'in its bearing on the States by reason of the Fourteenth Amendment, forbids * * * comment by the prosecution on the accused's silence * * *.' (380 U.S., at 615, 85 S.Ct. at 1233.)


Thus we must reckon here, as in Linkletter, 381 U.S., at 636, 85 S.Ct. at 1740, with decisional history of a kind which Chief Justice Hughes pointed out 'is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.' Chicot County Drainage Dist. v. Baxter State Bank, 308...

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