holding that a prosecutor’s comment on the defendant’s failure to testify violates the Fifth Amendment
How later courts described this case
- holding that a prosecutor’s comment on the defendant’s failure to testify violates the Fifth Amendment
- holding that a prosecutor’s direct reference to a criminal defendant’s failure to testify is a violation of the defendant’s Fifth Amendment privilege against compelled self-incrimination
- holding that the the state is barred from substantively using such prearrest expressions of silence. See State v. Kulzer, 2009 VT 79, ¶ 14 , 186 Vt. 264 , 979 A.2d 1031 (summarizing state court decisions). Fifth Amendment “forbids either comment by the prosecution on the accused’s silence [by not testifying at trial] or instructions by the court that such silence is evidence of guilt”
- holding that “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Portuondo v. Agard, 529 U.S. 61 (2000)
We decline to extend Griffin to the present context.
The opinion
Mr. Justice Hamah,
concurring. 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 decisions in Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 , 12 L. Ed. 2d 653 , that the Fifth Amendment applies 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 “incorpora *133 tion” doctrine is infecting the operation of the federal system. See my concurring opinion in Pointer v. State of Texas, 380 U. S. 400 , 85 S. Ct. 1065 .
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 no-comment rule “might be lost, and justice still be done,” Palko v. Connecticut, 302 U. S. 319, 325 , 58 S. Ct. 149, 152 , 82 L. Ed. 288 . As a “non-fundamental” part of the Fifth Amendment (cf. Pointer, 380 U. S. at 400 , 85 S. Ct. 1065 ), I would not, but for Malloy , apply the no-eomment rule to the States.
Malloy put forward a single argument for applying the Fifth Amendment, as such, to the States:
“It would be incongruous to have different standards determine the validity of a claim of privilege * * *, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified. ’ ’ 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 Constitution they are not intended to be.
It has also recently been suggested that measuring state procedures against standards of fundamental fairness as reflected in such landmark decisions as Twining v. New Jersey, 211 U. S. 78 , 29 S. Ct. 14 , 53 L. Ed. 97 , and Palko v. Connecticut, supra, “would require this Court to intervene in the state judicial process with considerable lack of predictability and with a consequent likelihood of considerable friction,” Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065, 1073 (concurring opinion of Goldberg, J.). This approach to the requirements of federalism, not unlike that evinced by the Court in Henry v. Mississippi, 379 U. S. 443 , 85 S. Ct. 564 , 13 L. Ed. 2d 408 , apparently leads, in cases like this, to the conclusion that the way to eliminate *134 friction with state judicial systems is not to attempt a working harmony, but to override them altogether.
Although compelled to concur in this decision, I am free to express the hope that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history.