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Fifth Amendment and the Inference of Guilt From Silence Griffin v. California After Fifteen Years

NCJ Number
Michigan Law Review Volume: 78 Issue: 6 Dated: (May 1980) Pages: 841-871
D B Ayer
Date Published
31 pages
Focusing on the fifth amendment privilege against self-incrimination, this article points out the inefficiency of the rule regarding self-incrimination estabished in the Supreme Court's decision in Griffin v. California (1965).
At the peak of its enthusiasm to expand the constitutional protections of criminal defendants, the Supreme Court struck down the conviction of alleged murderer Eddie Dean Griffin because he had failed to take the stand in his own defense. Specifically, the Court held that the judge's and prosecutor's unfavorable remarks to the jury regarding the defendant, possibly drawn from his failure to testify, were unconstitutional. As a result, the Griffin rule has seriously restricted State flexibility in trial procedure and has impaired the effective operation of the criminal justice system. The rule is overinclusive in supporting virtually authomatic reversal when remarks explicitly focus on the defendant's silence and the inference of guilt drawn from it. At the same time, the rule is underinclusive in its complete failure to address the much more common situation in which no comment is made by judge or prosecutor but the jury nonetheless concludes that the defendant is guilty because he has nothing to offer in his own defense. Nothing in the fifth amendment specifically addresses the problem of commenting upon a defendant's failure to testify at trial. Therefore, while Griffin may seem superficially consistent with fairness principles embodied in that amendement, it cannot be justified as a means to prevent fifth amendment, it cannot be justified as a means to prevent fifth amendment violations. It continues to exist as a rule without reasoned justification. Footnotes are included.