United States v. Robinson

Justice Marshall,

with whom

Justice Brennan joins, dissenting.

In practical terms, the erosion of the Griffin rule that the Court today sanctions is modest: the Court’s holding is tailored to address only prosecutorial comments that are “a fair response to a claim made by defendant or his counsel,” ante, at 32. Presumably, defendants and their counsel need only refrain from claiming that the Government denied them an opportunity to testify in order to insulate themselves from prosecutorial comment on the failure to testify. Only such claims are capable of provoking the prosecution to “fairly respond] to an argument of the defendant by adverting to that silence.” Ante, at 34. But however slight the impact of today’s decision, the Court’s faithlessness to the bright-line rules of Griffin v. California, 380 U. S. 609 (1965), and Wil *38 son v. United States, 149 U. S. 60 (1893), is unsettling and unwarranted. I therefore dissent.

The Court styles its decision as a refusal to expand the rule of Griffin . It rejects as unduly broad respondent’s reading of Griffin to prohibit any direct reference by the prosecutor to the defendant’s failure to testify. But Griffin lays down exactly this prohibition, and it does so in no uncertain terms. The final words of the opinion in Griffin read: “We . . . hold 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.” 380 U. S., at 615 . See also id., at 614, n. 5 (“Our decision today [is] that the Fifth Amendment prohibits comment on the defendant’s silence”). We repeatedly have recognized the categorical nature of the Griffin rule in subsequent decisions. 1 Respondent’s position thus represents a straightforward and orthodox reading of the controlling law.

Moreover, because this case involves a federal prosecution, the prosecutor’s comments must also satisfy the statutory requirements of 18 U. S. C. § 3481 , which we construed in Wilson v. United States, supra. Wilson’s longstanding prohibition on prosecutorial comment is,, if anything, more plainly categorical than the rule set down in Griffin : “To pre *39 vent [any adverse presumption from the defendant’s failure to testify,] comment, especially hostile comment, upon such failure must necessarily be excluded from the jury. The minds-of the jurors can only remain unaffected from this circumstance by excluding all reference to it.” 149 U. S., at 65 (emphasis added). The statement by the prosecutor in this case that respondent “could have taken the stand and explained it to you” is undeniably a comment on respondent’s exercise of his constitutional right not to testify. The statement thus violated the statutory rule of Wilson as well as the constitutional standard of Griffin .

The underpinnings of today’s decision are difficult to discern. The Court freely offers its conclusion that “[w]e think there is considerable difference . . . between the sort of comments involved in Griffin and the comments involved in this case,” ante, at 32, but it is far less forthcoming with its reasoning. At times, the Court’s opinion appears to flirt with a constitutional distinction under Griffin between prosecutorial comment that invites the jury to treat the defendant’s silence as substantive evidence of guilt and other prosecutorial comment on the failure to testify. No such distinction can be found in the text or the animating principle of Griffin . The passages from Griffin that the Court cites addressed California’s practice of permitting the trial court to instruct the jury that it could draw an unfavorable inference from the accused’s failure to testify. We recognized that “[w]hat the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Griffin, 380 U. S., at 614 . The Griffin opinion suggests no similar distinction with regard to comments by the prosecution. Indeed, its holding explicitly rejects such a distinction: “[T]he 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.” Id., at 615 (emphasis added).

*40 At other points in the opinion, the crux of the Court’s holding appears to be its assumption that the prosecution’s comments were made in response to improper argument from defense counsel. First, the Court’s premise is problematic. Respondent’s counsel could “fairly” have provoked the prosecutorial comment in this case only if he had suggested that the Government had prevented respondent from taking the stand at trial. Respondent maintains, however, that his counsel argued only that the Government had prevented him from explaining his position during its pretrial investigation, not during the trial itself. This interpretation appears from the record to be the most, if not the only, reasonable one. 2 More fundamentally, the Court’s suggestion that whether a comment violates Griffin depends on whether it is a response to the defense is muddled. A comment may well be a response to the defense and nevertheless be precisely the kind of statement that our holdings in Griffin and Wilson were designed to eliminate. If, for example, a defendant’s counsel argues at trial that the defendant failed to take the stand in order to protect another person, and the prosecution responds that the true explanation is that the defendant is guilty as sin, the prosecution’s comment responds to the defense, but it nevertheless invites the jury to infer guilt from the defendant’s decision not to testify. 3 Such a comment *41 violates Griffin under any reasonable interpretation of that case.

The breadth of the categorical bright-line rule of Griffin and Wilson is not a simple matter of convenience or administrability.' Rather, it rests on a theory that today’s decision threatens to erode. As the Court explained in Griffin , “comment on the refusal to testify .'. . cuts down on the privilege by making its assertion costly.” Griffin, supra, at 614 . The commonsensical premise of Griffin and Wilson is that the practice of prosecutorial comment on the failure to testify tends inherently to penalize a defendant for exercising his constitutional right not to take the stand. It is no doubt possible to conceive of a particular comment that would impose no penalty on a particular defendant in the eyes of a particular jury, but, as I argue below, that undertaking properly goes to the harmfulness, rather than the existence, of Griffin error. More importantly, the truly benign comment on the failure to testify is far less frequent than the offhand reference or subtle innuendo that imposes an unmistakable, if not always obvious, cost on the assertion of the Fifth Amendment privilege. Griffin , and Wilson before it, responded to this pervasive threat with a general prophylactic rule. As the author of Griffin explained: “In Griffin ... we held that *42 the Fifth Amendment guarantee against self-incrimination prohibits a prosecutor from commenting to the jury upon the defendant’s failure to testify at his trial. Such a practice would place a price on the defendant’s invocation of his constitutional privilege — a price that would seriously undermine the value of that privilege.” Burt v. New Jersey, 414 U. S. 938, 938 (1973) (Douglas, J., dissenting from denial of certiorari). Wilson similarly rejects a case-by-case analysis in favor of a general prophylactic ban: “To prevent such presumption being created, comment, especially hostile comment, upon such practice must necessarily be excluded from the jury.” 149 U. S., at 65 . See also Lakeside v. Oregon, 435 U. S. 333, 344 (1978) (Stevens, J., dissenting) (Although the probability that the jury will draw an unfavorable inference from the defendant’s failure to testify “can never be eliminated, Griffin stands for the proposition that the government may not add unnecessarily to the risk taken by a defendant who stands mute”) (footnote omitted).

That is not to say that every comment by the prosecution on the defendant’s failure to testify occasions a reversal of an ensuing conviction. This Court recognized as much in Chapman v. California, 386 U. S. 18, 21-24 (1967) (Griffin violation may be harmless error if the court believes beyond a reasonable doubt that the violation did not contribute to the jury’s verdict). My fundamental objection with the Court’s analysis is that it confuses the issue whether a constitutional error has occurred with the analytically distinct issue whether the constitutional error is harmless, or, as in a case like this one where no contemporaneous objection was made, whether the error is plain. The considerations that guide the Court’s opinion may help identify whether Griffin error is reversible, but they should not enter into the analysis whether Griffin error has occurred.

Nor do I necessarily dispute the Court’s statement that “prosecutorial comment must be examined in context.” Ante, at 33. I agree that under our precedents the com *43 ments in this case may be evaluated against the trial court’s and prosecution’s apparent perception that respondent’s counsel had offered an inaccurate suggestion that the Government had barred his client from testifying at trial. But this Court set out the framework for that evaluation in United States v. Young, 470 U. S. 1 (1985), and we previously indicated that it applied to this case. The prosecutor in Young , in response to unethical argument from defense counsel, interjected personal impressions into his argument to the jury. The Court recognized that the argument was improper but found that it was not plain error meriting reversal: “Viewed in context, the prosecutor’s statements, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” Id., at 16 . The teaching of Young is that improper argument that viewed in context only “rights the scales” after improper argument from the other side sometimes will not rise to the level of plain error. Id., at 14 . In this case, we vacated the Court of Appeals’ first reversal of respondent’s conviction and remanded for reconsideration in light of our intervening opinion in Young . See 716 F. 2d 1095 (1988), vacated and remanded, 470 U. S. 1025 (1985). The obvious premise of that order was that the prosecutor’s comments in this case were error under Griffin , but the Court of Appeals was to determine whether the error was plain in the context of defense counsel’s argument. Thus, we already have recognized that the “context” of an argument is relevant for determining whether it is reversible error, not for determining whether it in fact violates the bright-line standard of Griffin . The Court today muddies Griffin analysis by straying from that distinction.

The Court ultimately attempts to justify its decision by an appeal to the truth-finding function of the criminal trial. The Court cites this function as the central purpose of the trial and writes that “it is important that both the defendant and the prosecutor have the opportunity to fairly meet the *44 evidence and arguments of one another.” Ante, at 33. This rationale could mean one of two things, neither of which legitimately can support the Court’s holding. First, the Court could mean that the prosecutor’s statements in this case were not error because they aided the jury in its central purpose of determining whether respondent was guilty of mail fraud. This, however, is only another way of admitting that the prosecutor’s comments invited the jury to infer guilt from respondent’s silence, in clear violation of Griffin . If this is the kind of “truth-finding” the Court has in mind, the quick answer to the Court’s concern is that our constitutional scheme presupposes that the exercise of Fifth Amendment rights may make it more difficult to discover whether the defendant is guilty as charged; the impediment to the jury’s truth-finding function that the Court finds irksome is a matter of precious design. See Mackey v. United States, 401 U. S. 667, 673 (1971) (Fifth Amendment “privilege ‘is not an adjunct to the ascertainment of truth,’ but is aimed at serving the complex of values on which it has historically rested”) (citing Tehan v. United States ex rel. Shott, 382 U. S. 406, 416 (1966)). Griffin’s ban on prosecutorial comment on the failure to testify may impose a social cost, but the acceptance of this cost is a prized achievement which separates our system from an “‘inquisitorial system of criminal justice.’” Griffin, 380 U. S., at 614 .

The other meaning that the Court’s appeal to the criminal trial’s truth-finding function could have is that the prosecutor’s comments were not meant to bear on respondent’s guilt but merely made the jury aware that the Government had not barred respondent from taking the stand. Perhaps such a vindication of the Government’s honor and the principles of fair play has its place in the criminal justice system and may be taken into account in evaluating whether a particular constitutional violation is reversible error. In my estimation, however, this interest would rarely be significant enough to *45 subordinate the defendant’s right to an unfettered exercise of his privilege not to testify. Moreover, this interest can be vindicated by less burdensome alternatives, such as sustaining an objection from the prosecution or perhaps undertaking a separate disciplinary proceeding against a dissembling attorney. But in any event, the Court’s appeal to the truth-finding function is no justification for its determination that the prosecution’s comments were “perfectly proper.” Ante, at 33, n. 5. That conclusion, in fact, is unjustifiable; the prosecution’s comments were not perfectly proper under either Griffin or Wilson. Perhaps they were not reversibly improper, but that, as I have indicated, is a separate question.

The Court’s concluding comments reveal a belief that it simply would be unfair not to permit the prosecution to offer a “fair response ... in situations such as the present one.” Ante, at 34. This gut feeling may be the final explanation for today’s decision. But this Court should be more circumspect before bending constitutional principles in the service of what it takes to be the fairer result in an individual case. Whether or not the Court’s adulteration of Griffin and Wilson produces a fairer result here (and there is good reason to believe it does not), it tends to undermine a defendant’s constitutional privilege not to testify. “The Fifth Amendment privilege is ‘as . broad as the mischief against which it seeks to guard,’ and the privilege is fulfilled only when a criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.’” Estelle v. Smith, 451 U. S. 454, 467-468 (1981) (citations omitted; footnote omitted). As the Court itself recognizes, see ante, at 34, the comments in this case imposed a penalty on respondent for his decision not to take the stand. They also ran afoul of the express prohibitions of both Griffin and Wilson. The fair judicial response, rather than validating such comments, should be to reject them as violative of the Fifth Amendment. I dissent.

See, e. g., United States v. Hasting, 461 U. S. 499, 507 (1983) (Griffin “interpreted the Fifth Amendment guarantee against self-incrimination to mean that comment on the failure to testify was an unconstitutional burden on the basic right”); Jenkins v. Anderson, 447 U. S. 231, 235 (1980) (Griffin “prevents the prosecution from commenting on the silence of a defendant who asserts the right” not to testify); Mackey v. United States, 401 U. S. 667, 673 (1971) (“Griffin . . . construed the Fifth Amendment to forbid comment on defendants’ failure to testify, thereby removing a burden from the exercise of the privilege against compulsory self-incrimination and further implementing its purpose”); United States v. Jackson, 390 U. S. 570, 583, n. 25 (1968) (In Griffin, “the Court held that comment on a defendant’s failure to testify imposes an impermissible penalty on the exercise of the right to remain silent at trial”); Stovall v. Denno, 388 U. S. 293, 300 (1967) (referring to the “no comment rule of Griffin”).

Most of defense counsel’s controversial statements refer outright to the Government’s failure to allow respondent to explain his actions during the preindictment investigation. The balance, although admittedly more ambiguous, are also best seen in that light. Respondent’s argument is nevertheless troublesome, because, as the majority points out, it does not take account of the apparent understanding of the prosecution and trial court. But rather than address this tension in any cogent way, the Court simply “accept[s] what we regard as a reasonable interpretation of the remarks adopted by the trial court.” Ante, at 31. It does so even though the trial court never expressly made this interpretation and the Court of Appeals’ understanding is the more reasonable.

Indeed, this hypothetical chain of events bears more than a passing resemblance to this ease. In response to counsel’s claim that the Govern *41 ment had not given respondent a chance to explain, the prosecution paraded respondent’s failure to testify before the jury: “He could have taken the stand and explained it to you, anything he wanted to.” 716 F. 2d 1095, 1096 (1983). That statement varies only subtly, if at all, from the bald references condemned in Griffin v. California, 380 U. S., at 611 , “[tjhese things he has not seen fit to take the stand and deny or explain” — and Wilson v. United States, 149 U. S., at 62 , “if I am ever charged with a crime, ... I will go upon the stand . . . and testify before Heaven to my innocence.” The character of the statement at issue here thus is quite similar to that condemned in Griffin and Wilson. The focus on whether a comment is responsive therefore could sanction a blatant violation of Griffin . This is so because whether a prosecutorial comment imposes a cost on a defendant’s assertion of his Fifth Amendment privilege is not necessarily related to whether the comment is a response to the defense.