Monday, December 14, 2009
Jeffrey Bellin (Southern Methodist Univeresity) has posted Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence (Ohio State Law Journal, forthcoming) on SSRN. Here is the abstract:
The landmark case of Griffin v. California holds that the Fifth Amendment privilege against self-incrimination prohibits a prosecutor from arguing that a defendant's failure to testify supports an inference of guilt. In the four decades since Griffin was decided, this holding has become, in the Supreme Court's words, "an essential feature of our legal tradition," strictly limiting jury argument and instruction in state and federal criminal trials. At the same time, Griffin's doctrinal underpinnings have been strongly criticized by prominent jurists (including three current Supreme Court justices) and commentators. In light of these largely unanswered criticisms, even Griffin's contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.
This article takes up that challenge, relying on a fairness rationale implicit in existing case law to construct a doctrinal defense of a limited Fifth Amendment prohibition of adverse comment on defendant trial silence. The article suggests that in a certain subset of cases, primarily consisting of those cases where a defendant declines to testify to avoid the introduction of a prior criminal record as impeachment, adverse comment on defendant silence so exacerbates the plight of the silent defendant that it rises to the level of compulsion, forbidden by the Fifth Amendment.
The analysis also reveals, however, that in the bulk of cases, a Fifth Amendment-based prohibition of adverse comment is, in fact, indefensible. For many defendants, including most prominently defendants who decline to testify because they fear that the substance of their testimony will support rather than rebut the prosecution's evidence, adverse comment on trial silence constitutes a relatively minor burden. This burden, while not insignificant, simply cannot be analogized to the compulsion to testify that the Fifth Amendment prohibits. The article also notes that many silent defendants remain silent for reasons that are not protected by the Fifth Amendment (e.g., to avoid incriminating a third party). A Fifth Amendment bar to adverse comment on the trial silence of these defendants is also doctrinally indefensible.
Thus, while this article's thesis shores up the uncertain footing of the constitutional prohibition of adverse comment for some silent criminal defendants, it reveals the absence of a coherent rationale for the prohibition with respect to numerous others. The article posits, therefore, that the current Fifth Amendment-based prohibition of adverse comment on defendant silence must be recast in a more narrowly tailored form. The article concludes by suggesting a mechanism by which a properly tailored constitutional prohibition could be implemented.