EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, December 4, 2009

Article Of Interest: Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence By Professor Jeffrey Bellin

[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. Griffin v. California, 380 U.S. 609, 615 (1965).

[T]he Fifth Amendment requires that a criminal trial judge must give a "no-adverse-inference" jury instruction when requested by a defendant to do so. Carter v. Kentucky, 450 U.S. 288, 301 (1981)

As SMU Dedman School of Law Professor Jeffrey Bellin notes in his forthcoming article, Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, "[d]espite their doctrinal shortcomings, the holdings of Griffin and Carter remain largely intact today, forming one of the defining features of American criminal trials." Those shortcomings form the basis for the reconceptualization Professor Bellin sets forth in his article.

According to Professor Bellin, the main shortcoming is textual: Simply put, "[T]he Fifth Amendment does not...preclude 'any presumption against' a silent defendant, rather it prohibits being 'compelled' to be a witness." Many authorities, though, assume that criminal defendants must pay no penalty for exercising their Fifth Amendment right to remain silent because the Supreme Court said as much in sweeping dicta in Malloy v. Hogan, 378 U.S. 1, 8 (1964). As Professor Bellin astutely notes, "Malloy's 'no penalty' language wildly overstates the Fifth Amendment's protections" because "both before and after Malloy, the Supreme Court has upheld, against a Fifth Amendment challenge, government-imposed 'penalties' upon a defendant's exercise of his right to silence."   

For instance, in McGautha v.California, 402 U.S. 183, 213 (1971), "the Court rejected a Fifth Amendment

challenge to a unitary death penalty trial, even though the nature of the trial forced the defendant to either testify in the guilt phase of the trial, or forego the opportunity to personally seek clemency in the penalty phase." And in Raffel v. United States, 271 U.S. 494, 496-97 (1926), the Supreme Court permitted a testifying defendant to be impeached in a second trial by the fact that he had declined to testify in his first trial (the first trial resulted in a mistrial 

Professor Bellin goes on to note that the Supreme Court has even allowed certain types of adverse comments since Griffin and Carter. For example, in United States v. Robinson, 485 U.S. 25 (1988), the Court found no violation of the Fifth Amendment, where "defense counsel contended in closing argument that the government had not let the defendant explain certain incriminating circumstances," and the prosecutor responded "in rebuttal argument that the defendant 'could have taken the stand and explained it to you.'" From these and other opinions, Professor Bellin draws the conclusion that "adverse comment constitutes a minimal burden on defendant silence" and that "[w]hile certainly one factor in the tactical calculus, the pressure of adverse comment in these circumstances cannot, absent some additional consideration, be equated with the compulsion necessary to trigger a Fifth Amendment violation."

This sets the table for Professor Bellin's reconceptualization. Professor Bellin contends that there is a "fairness paradigm" implicit in the Court's opinions in this area, which leads him to put forth an approach that "would emphasize that it is the unfairness of adverse comment, in certain cases, that aggravates the comment's severity as a penalty, causing it to become an analogue to the forbidden compulsion to testify." According to Professor Bellin,

A recognition of the distinctive Fifth Amendment concerns raised by unfairly penalizing trial silence fortifies the prohibition of adverse comment against the doctrinal critiques noted at the outset of this article.  At the same time, this recognition highlights the fact that the current prohibition, which protects all defendants who remain silent at trial regardless of the motivations for their silence, far outstrips any coherent Fifth Amendment rationale.  Stated more precisely, if, as this article contends, a Fifth Amendment rationale for prohibiting adverse comment hinges on (i) eliminating unfair comment, that (ii) penalizes a Fifth Amendment refusal to incriminate oneself, the existing prohibition is needlessly protecting many defendants who either suffer no unfairness from adverse comment or who are silent for reasons unprotected by the Fifth Amendment. 

Professor Bellin argues that some of the defendants who are needlessly protected are defendants who do not testify because their testimony will support the prosecution case, defendants who decline to testify to hide their demeanor, and defendants who do not testify to avoid implicating a third party or embarrassing themselves. Conversely, Professor Bellin claims that other defendants do deserve protection, such as defendants who do not testify to avoid revealing their prior convictions (a large percentage of defendants) and defendants who fear revealing complicity in uncharged crimes.

I think that Professor Bellin gets to the heart of an issue that has received insufficient scholarly attention, and I strongly recommend his article, either in its current form on SSRN, or when it is published in the Ohio State Law Journal. I asked Professor Bellin what led him to write the article, and he responded:

The article follows from my recent strain of scholarship critically examining the legal rules surrounding defendant testimony in the American criminal justice system.  My overall intuition is that defendant testimony is largely undervalued (for historical and practical reasons) and that our system goes to curious lengths to encourage silence (e.g., prohibiting adverse inferences) and penalize testimony (e.g., allowing impeachment with prior convictions).

I think of the adverse inference article as part of the overall examination I began a few years ago.  My first article in this vein (Improving the Reliability of Criminal Trials Through Legal Rules That Encourage Defendants to Testify, 76 UNIVERSITY OF CINCINNATI LAW REVIEW 851 (2008)) puts forth a normative argument for why the system might work better if defendants were to testify more often and collects and analyzes the various legal incentives for silence and disincentives for testifying that artificially deflate the number of defendants who do testify; my second crack at the subject (Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS LAW REVIEW 289 (2008)) takes on the primary disincentive to defendant testimony (prior conviction impeachment) and makes a largely doctrinal argument that the federal courts and large number of state courts that follow the federal approach are too frequently allowing impeachment with prior convictions.  My last piece analyzes the primary incentive to silence (prohibition of adverse inferences) and argues that the incentive is being applied more broadly than the Fifth Amendment's prohibition on compelled self-incrimination warrants.



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Doesn't this line of reasoning forget that the burden of proof remain on the government? Wouldn't loosening the bar against comment on silence unfairly (for who could sort out "legitimate" from "illegitimate" reasons for silence?) lighten the government's burden to prove their case, and open the door to speculation and inference?????

Posted by: Barbara Blount-Powell | Dec 7, 2009 12:58:02 PM

Thanks for the post!

Pre-Griffin California actually had a fairly comprehensive system of limitations on adverse comment that tried to address exactly the concerns raised in the comment. One could argue that this system did a better job of eliminating speculation and inference than the current constitutional regime, although the fatal flaw of the California system (exemplified in Griffin) was its failure to acknowledge the role of prior convictions in a defendant's trial silence (something I emphasize in the article).

The sorting issue is also a difficult one, but is something else I try to address in the article.

Posted by: Jeff Bellin | Dec 15, 2009 6:41:27 AM

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