holding that where 2 “prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege” and further observing: “The central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence [and] [t]o this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another”
How later courts described this case
- holding that where 2 “prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege” and further observing: “The central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence [and] [t]o this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another”
- holding solicitor’s closing argument that defendant “could have taken the stand and explained it to you” did not violate defendant’s Fifth Amendment right against self-incrimination because prosecutor’s reference to defendant’s opportunity to testify was fair response to claim made by defendant in closing argument that government had not allowed defendant to explain his side of story
- finding no Fifth Amendment violation where the prosecutor commented in closing that defendant could have taken the stand and explained his side of the story, when the remarks followed defense counsel’s closing argument that the government had not allowed defendant, who did not testify, to explain his side of the story
- holding that prosecutorial comment on defendant's silence in response to defense counsel's claim that the government unfairly denied him opportunity to explain his actions did not violate privilege because "the prosecutorial comment did not treat the defendant's silence as substantive evidence of guilt"
Written by the judges who cited it.
Distinguished
Distinguished by United States v. Carriles, 832 F. Supp. 2d 699 (2010)
Without some showing that Defendant has sought to capitalize on the rule against comment for an improper purpose, Robinson and Rice are inapplicable here, and the Johnston rule applies to prohibit comment on Defendant’s invocations.5
Distinguished by State v. Ellsworth, 151 N.H. 152 (2004)
Accordingly, we reject the State’s argument that our decision is controlled by Robinson and conclude that the prosecutor’s remark was impermissible.
Distinguished by United States v. Harvey Wing, 104 F.3d 986 (1997)
Both Robinson and Lakeside are factually distinguishable from the present case.
The opinion
Justice Blackmun,
concurring in part and dissenting in part.
I agree with Justice Marshall when he concludes that the prosecutor’s comments constituted error under Griffin v. California, 380 U. S. 609 (1965). I also share his conclusion that the considerations taken into account by the Court in determining that no error occurred should have been weighed, instead, in assessing whether the prosecutor’s error qualified as plain error, requiring reversal despite the absence of a contemporaneous objection. See post, at 42. I write separately, however, because I think the Court of Appeals’ determination that the prosecutor’s error constituted plain error may well be wrong. I fear that the flaws in that court’s plain-error analysis, as I read it, may be attributable to confusion generated by this Court’s recent opinion in United States v. Young, 470 U. S. 1 (1985), and its direction to reconsider the present case in the light of Young. 470 U. S. 1025 (1985).
“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed. Rule Crim. Proc. 52(b). “[Considerations *35 of fairness to the court and to the parties and of the public interest in bringing litigation to an end” have led this Court to except from the contemporaneous-objection requirement only errors that are “obvious” or “otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S. 157, 159-160 (1936). See also United States v. Frady, 456 U. S. 152, 163, n. 14 (1982) (plain error “to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result”). While this Court has emphasized that the doctrine is to be invoked only rarely, it generally has avoided articulating a strict formula for other courts to follow in applying the doctrine. Cf. Engle v. Isaac, 456 U. S. 107, 135 (1982) (plain-error analysis characterized as “vague inquiry”).
In United States v. Young , however, the Court was presented with a lower court’s decision finding plain error which the Court determined had been reached without considering whether the defendant had been prejudiced by the error. In pinpointing where it thought the lower court had gone wrong, this Court broke down the plain-error inquiry into two parts: whether the error “seriously affected ‘substantial rights,’ ” and whether the error “had an unfair prejudicial impact on the jury’s deliberations.” 470 U. S., at 17, n. 14 . While any application of the plain-error doctrine necessarily includes some form of prejudice inquiry, the Court’s attempt to isolate that inquiry without giving it any substantive definition may have produced more mischief than clarity. See id., at 36 (Stevens, J., dissenting). The present decision below, I believe, is an example of this mischief.
In analyzing whether the prosecutor’s improper remarks at trial constituted plain error, the Court of Appeals tracked Young’s two-pronged analysis: the Court found, first, that the remarks affected a substantial right, and, second, that the effect of the error was not proved, beyond a reasonable doubt, to be harmless. 794 F. 2d 1132, 1137 (1986). In so *36 dividing the inquiry into these two parts, however, the Court of Appeals appears to have taken the constitutional nature of the error into consideration twice — both in finding the right at issue substantial and in following the lenient standard for prejudice used to determine whether properly preserved constitutional errors are harmless. See Chapman v. California, 386 U. S. 18, 24 (1967) (where court or prosecutor commits constitutional error, reviewing court “must be able to declare a belief that [the error] was harmless beyond a reasonable doubt”). Accounting for the constitutional magnitude of the error is, of course, appropriate. See Weems v. United States, 217 U. S. 349, 362 (1910) (court less reluctant to find plain error “when rights are asserted which are of such high character as to find expression and sanction in the Constitution or bill of rights”). I am troubled, however, by the Court of Appeals’ apparent double counting of the constitutional nature of the error, for it threatens to render meaningless the contemporaneous-objection requirement in the context of constitutional error. Under the Court of Appeals’ analysis, constitutional error, whether or not objected to at trial, always would be subject to the more sensitive prejudice standard set out in Chapman .
To clear the confusion reflected in the Court of Appeals’ application of the plain-error standard “in light of Young,” this Court should either continue on the path it started down in Young and formulate a test for plain error that articulates the prejudice standard to be applied, * or, in the alternative, *37 it should make clear, by reasserting the plain-error doctrine’s lack of rigid definition, that its language in Young is not to be interpreted as a test. This latter course may be more true to the doctrine’s purpose of allowing courts to single out the rare case in which allowing a conviction to stand would severely undermine “the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S., at 160 . Either course, however, would clarify for other courts their role in determining what errors, unnoticed at trial, warrant reversal. Because “the proper course” to follow “[w]hen we detect legal error in a lower court’s application of the plain-error or harmless-error rules ... is to set forth the appropriate standards and then remand for further proceedings,” United States v. Young, 470 U. S., at 30-31 (opinion concurring in part and dissenting in part), I would vacate the Court of Appeals’ judgment and remand the case after clarifying how the plain-error doctrine is to be applied.
In formulating that prejudice standard, the Court might look to the standard applied by some Courts of Appeals in assessing whether non-constitutional errors are harmless, see, e. g., United States v. Davis, 657 F. 2d 637, 640 (CA4 1981) (citing Kotteakos v. United States, 328 U. S. 750, 765 (1946), for the proposition that “[t]he test for harmlessness for nonconstitutional error is whether it is probable that the error could have affected the verdict reached by the particular jury in the particular circumstances of the trial”), or to the standard alluded to in Justice Stevens’ dissent in United States v. Young, 470 U. S. 1, 35, 37 (1985) (plain error *37 where error “obviously prejudicial,” .and prejudice of sufficient degree to warrant reversal).