In 1965, the Supreme Court held in Griffin v. California that the Fifth Amendment privilege against compelled self-incrimination prohibits judges and prosecutors from pointing to a defendant's failure to testify as substantive evidence of guilt. This doctrine assumes that such a prosecutorial or judicial "adverse comment" compels a negative inference-that the defendant is hiding something. The Griffin Court held that this assumption amounts to an unfair penalty on a defendant's invocation of a constitutionally protected right. This doctrine, however, makes a dangerous misstep in additionally assuming that the prohibition of adverse comment and the administration of limiting instructions curtail a jury's impermissible inference drawing and the associated penalty. Yet the presumption of guilt from silence may be unavoidable, and the "compulsion" created by silence that the Fifth Amendment aims to protect may exist independently of any prosecutorial theatrics, limiting instructions, or well-intended procedural protections. If so, the assumption underlying Griffin-that forbidding adverse comment protects a defendant's Fifth Amendment rights-loses its constitutional footing. If an imaginative jury, naturally aware and suspicious of silence, is inclined to draw impermissible connections, then the doctrine's purported shield serves as a roadblock, is arguably ineffective, and perhaps even does more harm than good. This Note argues that the Griffin roadblock should be abandoned as an American jurisprudential tool, whether through judicial review of legislation vacating Griffin protections in favor of other procedural safeguards or through the Court's express revisitation of the issue.
The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant,
69 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol69/iss1/5