stating that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt,” and describing comment on the refusal to testify as “a penalty imposed by courts for exercising a constitutional privilege” that “cuts down on the privilege by making its assertion costly”
How later courts described this case
- stating that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt,” and describing comment on the refusal to testify as “a penalty imposed by courts for exercising a constitutional privilege” that “cuts down on the privilege by making its assertion costly”
- 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.”
- holding that a prosecutor's comments about a defendant’s failure to testify about matters of which he or she has knowledge and comments by the court that the defendant’s silence can be construed against the defendant violate the Fifth Amendment
- holding unconstitutional, in the context of the [f]ifth [a]mendment privilege against self-incrimination, 'a penalty imposed by courts for exercising a constitutional privilege' because '[i]t cuts down on the privilege by making its assertion costly'
Written by the judges who cited it.
Distinguished
Distinguished by State v. Stever, 107 N.J. 543 (1987)
609, 85 S.Ct. 1229, 14 L.Ed.2d 106, is inapplicable because there is no underlying constitutional right on the part of a suspect to refuse to submit to a breathalyzer test.
Distinguished by Wessling v. Bennett, 290 F. Supp. 511 (1968)
The case of Griffin v. State of California, 380 F.2d 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) cited by petitioner is inapplicable to the case at bar.
The opinion
Mr. Justice Harlan,
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 decision in Halloy v. Hogan, 378 U. S. 1 , that the Fifth Amendment ap *616 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. Texas, ante, p. 400, at 408.
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, p. 617, fully demonstrates that the no-comment rule “might be lost, and justice still be done,” Palko v. Connecticut, 302 U. S. 319, 325 . As a “non-fundamental” part of the Fifth Amendment (cf. my opinion concurring in the result in Pointer, at 409), 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:
“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, at 11 . (Emphasis added.)
My answer then ( 378 U. S., at 27 ) 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 *617 Jersey, 211 U. S. 78 , 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, supra, at 413-414 (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 , apparently leads, in cases like this, to the conclusion that the way to eliminate 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.