Is Silence Golden?

Absolute constitutional rights are rare—even the venerable rights of free speech and freedom of religion are not absolute. In criminal prosecutions, the Sixth Amendment’s right to counsel has been described as the most important of all rights because it affects a defendant’s ability to assert his or her other rights. But even the right to counsel is not unlimited.

Yet one right is absolute. A criminal defendant has an absolute right not to testify in his own criminal trial. The text of the Self-Incrimination Clause of the Fifth Amendment—“No person . . . shall be compelled in any criminal case to be a witness against himself”—confirms that the defendant and his counsel have “the absolute right to decide that the accused shall not become a witness against himself.” That clause “commands that the decision be made free of any compulsion by the State.” Because the Bill of Rights is not meant to create “parchment barriers,” invoking a constitutional right should matter, especially where a person’s life or liberty is at stake, and the consequences of invocation should not undermine the right itself or deter future assertion of the right. This logic equally applies to the Fifth Amendment.

In 1965, the Supreme Court held in Griffin v. California that an instruction from a judge or a comment from a prosecutor that urges jurors to draw an adverse inference from a defendant’s refusal to testify and to use that inference as substantive evidence of guilt violates the Fifth Amendment. After Miranda v. Arizona, Griffin is the Warren Court’s most controversial Fifth Amendment ruling. Since its announcement, the result and reasoning in Griffin have been roundly criticized by jurists, lawyers, and scholars. One legal scholar has noted that the conservative Justices on the modern Court “treat Griffin like a virus under quarantine.”

Some have urged that Griffin be overruled. But that has not happened—yet. In Mitchell v. United States, a 1999 ruling, Justice Kennedy described the rule in Griffin as “of proven utility” and “an essential feature of our legal tradition.” But the five Justices who signed Mitchell are no longer on the Court. Justice Thomas thinks Griffin should be “reexamined,” which is his politic way of saying that he is ready to overrule it. A majority of the Court may agree with him.

Griffin was poorly written, but correctly decided. The absolute right not to testify is meaningless if state officials can urge jurors to use a defendant’s silence as substantive evidence of guilt. If the state ordered a defendant to testify on pain of contempt or physical abuse and then used his incriminating testimony as evidence of guilt, compulsion under the Fifth Amendment would be undeniable. The state should not be able to achieve the same result—eliciting involuntary, incriminating testimony—by urging jurors to view the refusal to testify as evidence of guilt. In that instance, silence is as damning as oral testimony. And in both scenarios, the accused is unable to avoid self-incrimination: when forced to testify, the accused is subject to cross-examination and required to testify against himself; and when he refuses to testify, the accused’s silence becomes unavoidably incriminating when the state is permitted to comment and invite an adverse inference.

Thus, the absolute right not to be a witness against oneself means that the choice to remain silent should not be used as evidence either. Otherwise, the right is no longer absolute. To paraphrase Justice Scalia, a harsh critic of Griffin, the accused’s absolute right to demand that the prosecution prove its case without his assistance “is not to be impaired by the jury’s counting the defendant’s silence at trial against him.”

This Article does three things. First, it provides a historical account of the rise and fall of the constitutional principle announced by Griffin. Second, it identifies and explains the Court’s significant decisions addressing adverse comment and its nexus with the Fifth Amendment. Finally, this Article offers a normative defense of Griffin and shows why its holding is consistent with the purpose of the Fifth Amendment as it is understood in the twenty-first century.