Griffin v. California
Encyclopedia
Griffin v. California, 380 U.S. 609 (1965), was a United States Supreme Court case in which the Court ruled, by a 6-2 vote, that it is a violation of a defendant's Fifth Amendment
rights for the prosecutor
to comment to the jury on the defendant's declining to testify, or for the judge to instruct the jury that such silence is evidence of guilt.
The ruling specified that this new extension to defendants' Fifth Amendment rights was binding on all States through the Due Process Clause of the Fourteenth Amendment
. This "no-comment rule" had already been binding on the federal government's courts because of an 1878 law.
court. Griffin had been invited into an apartment shared by Hodson and her boyfriend, Eddie Seay. After going to bed, Seay was awakened by noise; he saw Griffin and Hodson struggling, and Hodson said Griffin had tried to force her to have sex. After Seay locked Griffin outside the apartment, Griffin broke back into the apartment and struck Seay, who ran to a bar for help. Upon returning, Griffin and Hodson were gone. In the morning, a witness saw Griffin, buttoning up his pants, coming out of a very large trash box in an alley about 300 feet from Hodson's apartment. The witness found Hodson in the trash box, bleeding and apparently in shock. She died at a hospital the next day from her injuries. Griffin, who already had multiple felony convictions, did not testify at the trial.
As the U.S. Supreme Court said in its ruling, the prosecutor in the final argument to the jury "made much of the failure of [Griffin] to testify":
The judge, in his instructions to the jury, stated that a defendant has a constitutional right not to testify, and that this did not create a presumption of guilt, nor reduce the need for the prosecution to prove its case; but also stated to the jury:
This jury instruction was valid under the California Constitution
, whose "comment practice" clause in Article I stated at the time, "[I]n any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury."
Griffin was convicted and sentenced to the death penalty
. The California Supreme Court affirmed the conviction, and subsequently the U.S. Supreme Court granted certiorari to determine "whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan
."
was the only State that still prohibited testimony from the defendant.
A new concern was that although under the Fifth Amendment
no defendant could be forced to testify, now that testifying was permitted, "the failure of a defendant to testify would be seen as a confession of guilt and that jurors would draw this inference regardless of any instructions they might receive." To help reduce the impact or the likelihood of this inference, the federal government passed a law in 1878 called the "no-comment rule", prohibiting prosecutors from commenting on the failure to testify, and prohibiting any presumption against the defendant based on his failure to testify. (This law is currently .)
This federal law applied only to the federal courts, and because of the principle of federalism
, the States made their own decisions on this matter. For example, the California Constitution
explicitly permitted counsel and the judge to comment on the failure to testify.
In two rulings before Griffin, Twining v. New Jersey
(1908) and Adamson v. California
(1947), the Supreme Court upheld state laws allowing such adverse comments, ruling that even if adverse comments did violate defendants' Fifth Amendment rights, the Fifth Amendment did not bind the States. In Malloy v. Hogan
(1964), the Court reversed this stance, ruling that the Due Process Clause of the Fourteenth Amendment extended Fifth Amendment protections against self-incrimination to State trials.
wrote for the Court that a prosecutor's or judge's comment to the jury about a defendant's refusal to testify "is a remnant of the 'inquisitorial system of criminal justice', which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly."
The Court then noted that an objection to this logic might be that a jury might find it "natural and irresistible" to infer the guilt of a defendant who refused to testify while possessing facts about the evidence against him, and so a judge's commenting upon the refusal did not "magnify that inference into a penalty for asserting a constitutional privilege"; but went on to state that a judge's comment on the refusal "solemnizes the silence of the accused into evidence against him."
In a footnote, the Court noted that this ruling was "no innovation", because a majority of the Court had already written in Adamson v. California
(1947) that California's "comment practice" violated the Fifth Amendment. At the time, however, the Court had not yet ruled that the Fourteenth Amendment
made the Fifth Amendment applicable to the States.
concurred "with great reluctance", agreeing 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", but writing that this "no-comment" rule was a "non-fundamental" part of the Fifth Amendment, and that he would only apply it to the States because of the previous term's Malloy v. Hogan
decision. (Justice Harlan had dissented from the Malloy decision, writing that the "compelled uniformity" of applying the Fifth Amendment to the States "carries extremely mischievous, if not dangerous, consequences for our federal system".) Justice Harlan wrote that state and federal courts need not run by the same rules and that cases such as Griffin showed that the practical tendency had been for the federal judiciary to override the state judiciary, which was contrary to the basic idea of federalism
; and that he hoped "that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history."
, joined by Justice White
, dissented, writing that the Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself", and that California's "comment rule" did not "compel" the defendant nor anyone else to testify. Also, "the California procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts."
Justice Stewart wrote that the formulation of such rules "is properly a matter of local concern", and noted that the American Bar Association
and the American Law Institute
had endorsed the "comment" practice.
(1999), the Court extended Griffins no-comment rule to the sentencing phase of State trials. Justice Scalia
wrote in his dissent that Griffin "did not even pretend to be rooted in a historical understanding of the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional command," and that "To my mind, Griffin was a wrong turn -- which is not cause enough to overrule it, but is cause enough to resist its extension." This dissent was joined by three other Justices, including Justice Thomas
, who added in a separate dissent that Griffin "lacks foundation in the Constitution's text, history, or logic", and should be overruled outright.
A 1980 article in the Michigan Law Review
stated that Griffin occurred "at the peak of [the Supreme Court's] enthusiasm to expand the constitutional protections of criminal defendants", and that it has "impaired the effective operation of the criminal justice system", automatically reversing cases where the defendant's silence is mentioned but being a "complete failure to address the much more common situation in which no comment is made by judge or prosecutor but the jury nonetheless concludes that the defendant is guilty because he has nothing to offer in his own defense."
Great American Court Cases wrote that the Griffin ruling "preserved the presumption of innocence to which a defendant is constitutionally entitled."
The United Kingdom
had a no-comment rule similar to that established in Griffin, but the rule was reversed in Northern Ireland
in 1988 as a response to IRA
terrorism, and then the reversal spread throughout the United Kingdom
. Using this reversal as an argument, a 2007 article in the William & Mary Bill of Rights Journal argued that "Griffins no-comment rule has never faced a challenge as daunting as that posed by modern domestic terrorism
", and that it is currently "vulnerable" to reversal.
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
rights for the prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
to comment to the jury on the defendant's declining to testify, or for the judge to instruct the jury that such silence is evidence of guilt.
The ruling specified that this new extension to defendants' Fifth Amendment rights was binding on all States through the Due Process Clause of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. This "no-comment rule" had already been binding on the federal government's courts because of an 1878 law.
Background of the case
Edward Dean Griffin was convicted of the murder of Essie Mae Hodson before a jury in a CaliforniaCalifornia
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
court. Griffin had been invited into an apartment shared by Hodson and her boyfriend, Eddie Seay. After going to bed, Seay was awakened by noise; he saw Griffin and Hodson struggling, and Hodson said Griffin had tried to force her to have sex. After Seay locked Griffin outside the apartment, Griffin broke back into the apartment and struck Seay, who ran to a bar for help. Upon returning, Griffin and Hodson were gone. In the morning, a witness saw Griffin, buttoning up his pants, coming out of a very large trash box in an alley about 300 feet from Hodson's apartment. The witness found Hodson in the trash box, bleeding and apparently in shock. She died at a hospital the next day from her injuries. Griffin, who already had multiple felony convictions, did not testify at the trial.
As the U.S. Supreme Court said in its ruling, the prosecutor in the final argument to the jury "made much of the failure of [Griffin] to testify":
The judge, in his instructions to the jury, stated that a defendant has a constitutional right not to testify, and that this did not create a presumption of guilt, nor reduce the need for the prosecution to prove its case; but also stated to the jury:
This jury instruction was valid under the California Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
, whose "comment practice" clause in Article I stated at the time, "[I]n any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury."
Griffin was convicted and sentenced to the death penalty
Capital punishment in the United States
Capital punishment in the United States, in practice, applies only for aggravated murder and more rarely for felony murder. Capital punishment was a penalty at common law, for many felonies, and was enforced in all of the American colonies prior to the Declaration of Independence...
. The California Supreme Court affirmed the conviction, and subsequently the U.S. Supreme Court granted certiorari to determine "whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan
Malloy v. Hogan
Malloy v. Hogan, 378 U.S. 1 , was a case in which the Supreme Court of the United States deemed a defendant's Fifth Amendment right against self-incrimination was applicable within state courts as well as federal courts...
."
History and legal background
Until the late 1800s, defendants in criminal trials in the United States were not allowed to testify. Starting in 1864, the States started to allow this practice, until by the end of the century, GeorgiaGeorgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
was the only State that still prohibited testimony from the defendant.
A new concern was that although under the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
no defendant could be forced to testify, now that testifying was permitted, "the failure of a defendant to testify would be seen as a confession of guilt and that jurors would draw this inference regardless of any instructions they might receive." To help reduce the impact or the likelihood of this inference, the federal government passed a law in 1878 called the "no-comment rule", prohibiting prosecutors from commenting on the failure to testify, and prohibiting any presumption against the defendant based on his failure to testify. (This law is currently .)
This federal law applied only to the federal courts, and because of the principle of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
, the States made their own decisions on this matter. For example, the California Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
explicitly permitted counsel and the judge to comment on the failure to testify.
In two rulings before Griffin, Twining v. New Jersey
Twining v. New Jersey
Twining v. New Jersey, 211 U.S. 78 , presented an early standard of the Supreme Court's Incorporation Doctrine by establishing that while certain rights enumerated in the Bill of Rights might apply to the states under the 14th amendment's due process clause, the 5th amendment's right against...
(1908) and Adamson v. California
Adamson v. California
Adamson v. California, 332 U.S. 46 was a United States Supreme Court case regarding the incorporation of the Fifth Amendment of the Bill of Rights. Its decision is part of a long line of cases that eventually led to the Selective Incorporation Doctrine.-Background:In Adamson v...
(1947), the Supreme Court upheld state laws allowing such adverse comments, ruling that even if adverse comments did violate defendants' Fifth Amendment rights, the Fifth Amendment did not bind the States. In Malloy v. Hogan
Malloy v. Hogan
Malloy v. Hogan, 378 U.S. 1 , was a case in which the Supreme Court of the United States deemed a defendant's Fifth Amendment right against self-incrimination was applicable within state courts as well as federal courts...
(1964), the Court reversed this stance, ruling that the Due Process Clause of the Fourteenth Amendment extended Fifth Amendment protections against self-incrimination to State trials.
The ruling
Justice DouglasWilliam O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
wrote for the Court that a prosecutor's or judge's comment to the jury about a defendant's refusal to testify "is a remnant of the 'inquisitorial system of criminal justice', which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly."
The Court then noted that an objection to this logic might be that a jury might find it "natural and irresistible" to infer the guilt of a defendant who refused to testify while possessing facts about the evidence against him, and so a judge's commenting upon the refusal did not "magnify that inference into a penalty for asserting a constitutional privilege"; but went on to state that a judge's comment on the refusal "solemnizes the silence of the accused into evidence against him."
In a footnote, the Court noted that this ruling was "no innovation", because a majority of the Court had already written in Adamson v. California
Adamson v. California
Adamson v. California, 332 U.S. 46 was a United States Supreme Court case regarding the incorporation of the Fifth Amendment of the Bill of Rights. Its decision is part of a long line of cases that eventually led to the Selective Incorporation Doctrine.-Background:In Adamson v...
(1947) that California's "comment practice" violated the Fifth Amendment. At the time, however, the Court had not yet ruled that the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
made the Fifth Amendment applicable to the States.
Justice Harlan's concurrence
Justice HarlanJohn Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
concurred "with great reluctance", agreeing 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", but writing that this "no-comment" rule was a "non-fundamental" part of the Fifth Amendment, and that he would only apply it to the States because of the previous term's Malloy v. Hogan
Malloy v. Hogan
Malloy v. Hogan, 378 U.S. 1 , was a case in which the Supreme Court of the United States deemed a defendant's Fifth Amendment right against self-incrimination was applicable within state courts as well as federal courts...
decision. (Justice Harlan had dissented from the Malloy decision, writing that the "compelled uniformity" of applying the Fifth Amendment to the States "carries extremely mischievous, if not dangerous, consequences for our federal system".) Justice Harlan wrote that state and federal courts need not run by the same rules and that cases such as Griffin showed that the practical tendency had been for the federal judiciary to override the state judiciary, which was contrary to the basic idea of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
; and that he hoped "that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history."
The dissent
Justice StewartPotter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
, joined by Justice White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
, dissented, writing that the Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself", and that California's "comment rule" did not "compel" the defendant nor anyone else to testify. Also, "the California procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts."
Justice Stewart wrote that the formulation of such rules "is properly a matter of local concern", and noted that the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
and the American Law Institute
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...
had endorsed the "comment" practice.
Significance and Criticism
In Mitchell v. United StatesMitchell v. United States
Mitchell v. United States, is a United States Supreme Court case that considered twoFifth Amendment privileges related to a criminal defendant’s rights against self-incrimination in a Federal District Court...
(1999), the Court extended Griffins no-comment rule to the sentencing phase of State trials. Justice Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
wrote in his dissent that Griffin "did not even pretend to be rooted in a historical understanding of the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional command," and that "To my mind, Griffin was a wrong turn -- which is not cause enough to overrule it, but is cause enough to resist its extension." This dissent was joined by three other Justices, including Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, who added in a separate dissent that Griffin "lacks foundation in the Constitution's text, history, or logic", and should be overruled outright.
A 1980 article in the Michigan Law Review
Michigan Law Review
The Michigan Law Review is an American law reviews established in 1902, after Gustavus Ohlinger, a student in the Law Department of the University of Michigan, approached the Dean with a proposal for a law journal. The Michigan Law Review was originally intended as a forum in which the faculty of...
stated that Griffin occurred "at the peak of [the Supreme Court's] enthusiasm to expand the constitutional protections of criminal defendants", and that it has "impaired the effective operation of the criminal justice system", automatically reversing cases where the defendant's silence is mentioned but being a "complete failure to address the much more common situation in which no comment is made by judge or prosecutor but the jury nonetheless concludes that the defendant is guilty because he has nothing to offer in his own defense."
Great American Court Cases wrote that the Griffin ruling "preserved the presumption of innocence to which a defendant is constitutionally entitled."
The United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
had a no-comment rule similar to that established in Griffin, but the rule was reversed in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
in 1988 as a response to IRA
Provisional Irish Republican Army
The Provisional Irish Republican Army is an Irish republican paramilitary organisation whose aim was to remove Northern Ireland from the United Kingdom and bring about a socialist republic within a united Ireland by force of arms and political persuasion...
terrorism, and then the reversal spread throughout the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. Using this reversal as an argument, a 2007 article in the William & Mary Bill of Rights Journal argued that "Griffins no-comment rule has never faced a challenge as daunting as that posed by modern domestic terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
", and that it is currently "vulnerable" to reversal.