# Mitchell v. United States > Supreme Court of the United States · April 5, 1999 · 526 U.S. 314 URL: https://www.frixlaw.com/law-library/cases/9433787 ## Case - **Full name:** Mitchell v. United States - **Court:** Supreme Court of the United States - **Decided:** April 5, 1999 - **Citations:** 526 U.S. 314; 119 S. Ct. 1307; 143 L. Ed. 2d 424; 1999 U.S. LEXIS 2348 - **Precedential status:** Published - **Opinion:** Dissent by Thomas - **Judges:** Kennedy, Stevens, Souter, Ginsburg, Breyer, Scalia, Rehnquist, O'Connor, Thomas - **Cited by:** 708 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Limited by United States v. Cabrera, 811 F.3d 801 (2016). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9433787 ## How later opinions describe it (automated extraction) - explaining that the Fifth Amendment privilege no longer applies “once there can be no further incrimination” because “the sentence has been fixed and the judgment of conviction has become final,” and that a witness may not otherwise “testify voluntarily about a subject and the… - holding that a defendant who pleads guilty retains the Fifth Amendment privilege against self-incrimination through the sentencing proceeding “with regard to factual determinations respecting the circumstances and details of the crime,” but refraining from deciding whether a d… - recognizing “the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them, at least where refusal to waive the privilege does not lead automat… - stating “[a]s an original matter, it would seem to me that the threat of an adverse inference does not ‘compel’ anyone to testify,” and “[o]ur hardy forebears, who thought of compulsion in terms of the rack and oaths forced by the power of law, 46 would not have viewed the dra… - explaining the general principle that a criminal defendant has no valid basis to claim the right against self-incrimination is premised upon the theory that “there can be no further incrimination,” i.e., “the sentence has been fixed and the judgment of conviction has become fi… ## Opinion text Justice Thomas, dissenting. Justice Scalia’s dissenting opinion persuasively demonstrates that this Court’s decision in Griffin v. California, 380 U. S. 609 (1965), lacks foundation in the Constitution’s text, history, or logic. The vacuousness of Griffin supplies “cause enough to resist its extension.” Ante, at 336. And, in my view, it also illustrates that Griffin and its progeny, in- *342 eluding Carter v. Kentucky, 450 U. S. 288 (1981), should be reexamined. As Justice Scalia notes, is plain” and its historical “pedigree is equally dubious.” Ante, at 332 (emphasis added). Not only does Griffin fail to withstand a proper constitutional analysis, it rests on an unsound assumption. Griffin relied partly on the premise that comments about a defendant’s silence (and the inferences drawn therefrom) penalized the exercise of his Fifth Amendment privilege. See Griffin, supra, at 614 ; Carter, supra, at 301 . As the dissenting Justices in Griffin rightly observed, such comments or inferences do not truly “penalize” a defendant. See 380 U. S., at 62Ó-621 (opinion of Stewart, J., joined by White, J.) (“Exactly what the penalty imposed consists of is not clear”); id., at 621 (“[TJhe Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive”). Prosecutorial comments on a defendant’s decision to remain silent at trial surely impose no greater “penalty” on a defendant than threats to indict him on more serious charges if he chooses not to enter into a plea bargain — a practice that this Court previously has validated. See, e. g., Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978) (finding no due process violation where plea negotiations “presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution”). Moreover, this so-called “penalty” lacks any constitutional significance, since the explicit constitutional guarantee has been fully honored — a defendant is not “compelled ... to be a witness against himself,” U. S. Const., Arndt. 5, merely because the jury has been told that it may draw an adverse inference from his failure to testify. See Gh'iffin, supra, at 621 (Stewart, J., joined by White, J., dissenting) (“[Cjomment by counsel and the court does not compel testimony by creating such an awareness” of a de *343 fendant’s decision not to testify); Carter, supra, at 306 (Powell, J., concurring) (“But nothing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”)- * Therefore, at bottom, Griffin constitutionalizes a policy choice that a majority of the Court found desirable at the time. Carter compounded the error. This sort of undertaking is not an exercise in constitutional interpretation but an act of judicial willfulness that has no logical stopping point. See Carter, supra, at 810 (Rehnquist, J., dissenting) (“Such Thomistic reasoning is now carried from the constitutional provision itself, to the Griffin case, to the present ease, and where it will stop no one can know”). We have previously recognized that stare decisis is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini v. Felton, 521 U. S. 203, 235 (1997). Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case. For purposes of this case, which asks only whether the principle established in Griffin should be extended, I agree that the Fifth Amendment does not prohibit a sentencer from drawing an adverse inference from a defendant’s failure to testify and, therefore, join Justice Scalia’s dissent. I also agree with Justice Scalia, ante, at 336, that Griffin improperly-relied on a prior decision interpreting a federal statute to inform its resolution of a constitutional question — an error the Court later repeated in Carter . See Griffin v. California, 380 U. S. 609, 613-614 (1965); Carter v. Kentucky, 450 U. S. 288, 300-301, n. 16 (1981). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9433787. Public record. Not legal advice.