GRIFFIN v. CALIFORNIA.
No. 202.
Argued March 9, 1965.
Decided April 28, 1965.
Morris Lavine argued the cause and filed briefs for petitioner.
Albert W. Harris, Jr., Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, Arlo E. Smith, Chief Assistant Attorney General, and Deraid E. Granberg, Deputy Attorney General.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner was convicted of murder in the first degree after a jury trial in a California court. He did not testify at the trial on the issue of guilt, though he did testify at the separate trial on the issue of penalty. The trial court instructed the jury on the issue of guilt, stating that a defendant has a constitutional right not to testify. But it told the jury:
“As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.”
It added, however, that no such inference could be drawn as to evidence respecting which he had no knowledge. It stated that failure of a defendant to deny or explain the evidence of which he had knowledge does not create a presumption of guilt nor by itself warrant an inference of guilt nor relieve the prosecution of any of its burden of proof.
Petitioner had been seen with the deceased the evening of her death, the evidence placing him with her in the alley where her body was found. The prosecutor made much of the failure of petitioner to testify:
“The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.
“What kind of a man is it that would want to have sex with a woman that beat up if she was beat up at the time he left?
“He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.
“These things he has not seen fit to take the stand and deny or explain.
“And in the whole world, if anybody would know, this defendant would know.
“Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.”
The death penalty was imposed and the California Supreme Court affirmed. 60 Cal. 2d 182, 383 P. 2d 432. The case is here on a writ of certiorari which we granted, 377 U. S. 989, to consider 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, 378 U. S. 1, decided after the Supreme Court of California had affirmed the present conviction.
If this were a federal trial, reversible error would have been committed. Wilson v. United States, 149 U. S. 60, so holds. It is said, however, that the Wilson decision rested not on the Fifth Amendment, but on an Act of Congress, now 18 U. S. C. § 3481. That indeed is the fact, as the opinion of the Court in the Wilson case states. And see Adamson v. California, 332 U. S. 46, 60, n. 6; Bruno v. United States, 308 U. S. 287, 294. But that is the beginning, not the end, of our inquiry. The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.
We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are the equivalent of an offer of evidence and its acceptance. The Court in the Wilson case stated:
. . the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him.” 149 U. S., p. 66.
If the words “Fifth Amendment” are substituted for “act” and for “statute,” the spirit of the Self-Incrimination Clause is reflected. For comment on the refusal to testify is a remnant of the “inquisitorial system of criminal justice,” Murphy v. Waterfront Comm’n, 378 U. S. 52, 55, 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. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and .that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. People v. Modesto, 62 Cal. 2d 436, 452-453, 398 P. 2d 753, 762-763. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another. That the inference of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself:
“Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him ([Cal.] Code Civ. Proc. § 2051) and not that he is unable to deny the accusations. It is true that the defendant might fear that his prior convictions will prejudice the jury, and therefore another possible inference can be drawn from his refusal to take the stand.” Id., p. 453, 398 P. 2d, p. 763.
We said in Malloy v. Hogan, supra, p. 11, that “the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified.” We take that in its literal sense and hold that the 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.
Reversed.
The Chief Justice took no part in the decision of this case.
See Penal Code § 190.1, providing for separate trials on the two issues.
Article I, § 13, of the California Constitution provides in part:
“. . . in 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.”
The California Supreme Court later held in People v. Modesto, 62 Cal. 2d 436, 398 P. 2d 753, that its ‘‘comment” rule squared with Malloy v. Hogan, 378 U. S. 1. The overwhelming consensus of the States, however, is opposed to allowing comment on the defendant’s failure to testify. The legislatures or courts of 44 States have recognized that such comment is, in light of the privilege against self-incrimination, “an unwarrantable line of argument.” State v. Howard, 35 S. C. 197, 203, 14 S. E. 481, 483. See 8 Wigmore, Evidence § 2272, n. 2 (McNaughton rev. ed. 1961 and 1964 Supp.). Of the six States which permit comment, two, California and Ohio, give this permission by means of an explicit constitutional qualification of the privilege against self-incrimination. Cal. Const., Art. I, § 13; Ohio Const., Art. I, § 10. New Jersey permits comment, State v. Corby, 28 N. J. 106, 145 A. 2d 289; cf. State v. Garvin, 44 N. J. 268, 208 A. 2d 402; but its constitution contains no provision embodying the privilege against self-incrimination (see Laba v. Newark Bd. of Educ., 23 N. J. 364, 389, 129 A. 2d 273, 287; State v. White, 27 N. J. 158, 168-169, 142 A. 2d 65, 70). The absence of an express constitutional privilege against self-incrimination also puts Iowa among the six. See State v. Ferguson, 226 Iowa 361, 372-373, 283 N. W. 917, 923. Connecticut permits comment by the judge but not by the prosecutor. State v. Heno, 119 Conn. 29, 174 A. 181. New Mexico permits comment by the prosecutor but holds that the accused is then entitled to an instruction that “the jury shall indulge no presumption against the accused because of his failure to testify.” N. M. Stat. Ann. § 41-12-19; State v. Sandoval, 59 N. M. 85, 279 P. 2d 850.
Section 3481 reads as follows:
“In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.” June 25, 1948, c. 645, 62 Stat. 833.
The legislative history shows that 18 U. S. C. § 3481 was designed, inter alia, to bar counsel for the prosecution from commenting on the defendant’s refusal to testify. Mr. Frye of Maine, spokesman for the bill, said, “That is the law of Massachusetts, and we propose to adopt it as a law of the United States.” 7 Cong. Pee. 385. The reference was to Mass. Stat. 1866, c. 260, now Mass. Gen. Laws Ann., e. 233, §20, cl. Third (1959), which is almost identical with 18 U. S. C. § 3481. See also Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Scott, 123 Mass. 239; Opinion of the Justices, 300 Mass. 620, 15 N. E. 2d 662.
Our decision today that the Fifth Amendment prohibits comment on the defendant’s silence is no innovation, for on a previous occasion a majority of this Court indicated their acceptance of this proposition. In Adamson v. California, 332 U. S. 46, the question was, as here, whether the Fifth Amendment proscribed California’s comment practice. The four dissenters (Black, Douglas, Murphy and Rutledge, JJ.) would have answered this question in the affirmative. A fifth member of the Court, Justice Frankfurter, stated in a separate opinion: “For historical reasons a limited imniunity from the common duty to testify was written into the Federal Bill of Rights, and I am prepared to agree that, as part of that immunity, comment on the failure of an accused to take the witness stand is forbidden in federal prosecutions.” Id., p. 61. But, though he agreed with the dissenters on this point, he also agreed with Justices Vinson, Reed, Jackson, and Burton that the Fourteenth Amendment did not make the Self-Incrimination Clause of the Fifth Amendment applicable to the States; thus he joined the opinion of the Court which so held (the Court’s opinion assumed that the Fifth Amendment barred comment, but it expressly disclaimed any intention to decide the point. Id., p.50).
We reserve decision on whether an accused can require, as in Bruno v. United States, 308 U. S. 287, that the jury be instructed that his silence must be disregarded.
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