There is a long-standing tradition in constitutional law that the government may not punish a person for exercising his constitutional rights. However, many states allowed jurors to draw adverse inferences from the accused’s failure to testify at trial. In Griffin v. California, the Supreme Court considered whether this practice was consistent with the Fifth and Fourteenth Amendments.
In Griffin, the trial court told the jury that if it determined that the defendant likely knew certain case facts, but did not take the witness stand to explain those facts, the jury could draw an adverse inference from his silence. During closing argument, the prosecutor argued to the jury that since the defendant did not testify, the jury should infer that he had something to hide.
Justice Douglas wrote for a six-to-two Court majority that the practice was ‘‘a penalty imposed by courts for exercising a constitutional privilege.’’ Thus, the practice was unconstitutional. Justice Douglas wisely recognized that jurors might still infer that a defendant without something to hide would testify. But the Court’s concern was what the jury ‘‘may infer when the court solemnizes the silence of the accused into evidence against him.’’
Later, the Court held that trial courts, if counsel requests, must instruct the jury to disregard the defendant’s silence—that is, not to infer any facts the silence (Carter v. Kentucky). The Court also held that the sentencing court may not consider the defendant’s silence when sentencing the defendant (Mitchell v. United States, 526 U.S. 314, 1999). These practices ensure that no citizen is punished for asserting his constitutional rights.
MICHAEL C. CERNOVICH
References and Further Reading
Cases and Statutes Cited
See also Self-Incrimination (V): Historical Background; Warren Court