# Griffin v. California/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinion Stewart
* Wikipedia article
United States Supreme Court
380 U.S. 609
Griffin v. California
Argued: March 9, 1965. --- Decided: April 28, 1965
Mr. Justice STEWART, with whom Mr. Justice WHITE joins, dissenting.
The petitioner chose not to take the witness stand at his trial upon a charge of first-degree murder in a California court. Article I, § 13, of the California Constitution establishes a defendant's privilege against self-incrimination and further provides:
'(I)n 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 any by counsel, and may be considered by the court or the jury.'
In conformity with this provision, the prosecutor in his argument to the jury emphasized that a person accused of crime in a public forum would ordinarily deny or explain the evidence against him if he truthfully could do so. Also in conformity with this California constitutional provision, the judge instructed the jury in the following terms:
'It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely in his own decision. 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. In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain any certain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.'
The jury found the petitioner guilty as charged, and his conviction was affirmed by the Supreme Court of California.
No claim is made that the prosecutor's argument or the trial judge's instructions to the jury in this case deprived the petitioner of due process of law as such. This Court long ago decided that the Due Process Clause of the Fourteenth Amendment does not of its own force forbid this kind of comment on a defendant's failure to testify. Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672. The Court holds, however, that the California constitutional provision violates the Fifth Amendment's injunction that no person 'shall be compelled in any criminal case to be a witness against himself,' an injunction which the Court less than a year ago for the first time found was applicable to trials in the courts of the several States.
With both candor and accuracy, the Court concedes that the question before us is one of first impression here. It is a question which has not arisen before, because until last year the self-incrimination provision of the Fifth Amendment had been held to apply only to federal proceedings, and in the federal judicial system the matter has been covered by a specific Act of Congress which has been in effect ever since defendants have been permitted to testify at all in federal criminal trials. See Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765; Adamson v. People of State of California, supra.
We must determine whether the petitioner has been 'compelled * * * to be a witness against himself.' Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. When a suspect was brought before the Court of High Commission or the Star Chamber, he was commanded to answer whatever was asked of him, and subjected to a farreaching and deeply probing inqury in an effort to ferret out some unknown and frequently unsuspected crime. He declined to answer on pain of incarceration, banishment, or mutilation. And if he spoke falsely, he was subject to further punishment. Faced with this formidable array of alternatives, his decision to speak was unquestionably coerced.
Those were the lurid realities which behind enactment of the Fifth Amendment, a far cry from the subject matter of the case before us. I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. In support of its conclusion that the California procedure does compel the accused to testify, the Court has only this to say: 'It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.' Exactly what the penalty imposed consists of is not clear. It is not, as I understand the problem, that the jury becomes aware that the defendant has chosen not to testify in his own defense, for the jury will, of course, realize this quite evidence fact, even though the choice goes unmentioned. Since comment by counsel and the court does not compel testimony by creating such an awarencess, the Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive.
It is not at all apparent to me, on any realistic view of the trial process, that a defendant will be at more of a disadvantage under the California practice than he would be in a court which permitted no comment at all on his failure to take the witness stand. How can it be said that the inferences drawn by a jury will be more detrimental to a defendant under the limiting and carefully controlling language of the instruction here involved than would result if the jury were left to roam at large with only its untutored instincts to guide it, to draw from the defendant's silence broad inferences of guilt? The instructions in this case expressly cautioned the jury that the defendant's failure to testify 'does not create a presumption of guilt or by itself warrant an inference of guilt'; it was further admonished that such failure does not 'relieve the prosecution of its burden of providing every essential element of the crime,' and finally the trial judge warned that the prosecution's burden remained that of proof 'beyond a reasonable doubt.' Whether the same limitations would be observed by a jury without the benefit of protective instructions shielding the defendant is certainly open to real doubt.
Moreover, no one can say where the balance of advantage might lie as a result of the attorneys' discussion of the matter. No doubt the prosecution's argument will seek to encourage the drawing of inferences unfavorable to the defendant. However, the defendant's counsel equally has an opportunity to explain the various other reasons why a defendant may not wish to take the stand, and thus rebut the natural if uneducated assumption that it is because the defendant cannot truthfully deny the accusations made.
I think the California comment rule is not a coercive device which impairs the right against self-incrimination, but rather a means of articulating and bringing into the light of rational discussion a fact inescapably impressed on the jury's consciousness. The California procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts. Surely no one would deny that the State has an important interest in throwing the light of rational discussion on that which transpires in the course of a trial, both to protect the defendant from the very real dangers of silence and to shape a legal process designed to ascertain the truth.
The California rule allowing comment by counsel and instruction by the judge on the defendant's failure to take the stand is hardly an idiosyncratic aberration. The Model Code of Evidence, and the Uniform Rules of Evidence both sanction the use of such procedures. The practice has been endorsed by resolution of the American Bar Association and the American Law Institute, and has the support of the weight of scholarly opinion.
The formulation of procedural rules to govern the administration of criminal justice in the various States is properly a matter of local concern. We are charged with no general supervisory power over such matters; our only legitimate function is to prevent violations of the Constitution's commands. California has honored the constitutional command that no person shall 'be compelled in any criminal case to be a witness against himself.' The petitioner was not compelled to testify, and he did not do so. But whenever in a jury trial a defendant exercises this constitutional right, the members of the jury are bound to draw inferences from his silence. No constitution can prevent the operation of the human mind. Without limiting instructions, the danger exists that the inferences drawn by the jury may be unfairly broad. Some States have permitted this danger to go unchecked, by forbidding any comment at all upon the defendant's failure to take the witness stand. Other States have dealt with this danger in a variety of ways, as the Court's opinion indicates. Ante, note 3, at pp. 611-612. Some might differ, as a matter of policy, with the way California has chosen to deal with the problem, or even disapprove of the judge's specific instructions in this case. But, so long as the constitutional command is obeyed, such matters of state policy are not for this Court to decide.
I would affirm the judgment.

## Notes

* ↑ See the excerpt from the prosecutor's argument quoted in the Court's opinion, ante, pp. 610-611.
* ↑ 60 Cal.2d 182, 32 Cal.Rptr. 24, 383 p.2d 432. As this case was decided before Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, the California Supreme Court did not give plenary consideration to the question now before us; however, that court has since upheld the federal constitutionality of the California comment rule in a thoroughly reasoned opinion by Chief Justice Traynor. People v. Modesto, 62 Cal.2d 436, 42 Cal.Rptr. 417, 398 P.2d 753.
* ↑ In the Adamson case, the present question was not reached because the majority ruled that the Fifth Amendment is not applicable to the States. Mr. Justice Reed's opinion made clear that the California rule was only assumed to contravene the Fifth Amendment, 'without any intention * * *of ruling upon the issue.' The dissenting opinion of Mr. Justice Black and Mr. Justice Douglas read the majority opinion as 'strongly (implying) that the Fifth Amendment does not, of itself, bar comment upon failure to testify,' but they considered the case on the majority's assumption, thereby giving no approval to that assumption, even in dictum. That no such approval was given by this dissenting opinion is further made evident by the fact that Mr. Justice Murphy and Mr. Justice Rutledge, also in dissent, felt it necessary to make what they characterized as an 'addition,' an expression of their view that the guarantee against self-incrimination had been violated in the case. Mr. Justice Frankfurter, in concurring, also indicated that he was prepared to agree that the Fifth Amendment barred comment, thus bringing to three the members of the Court who, in dicta, took the view embraced by the Court today.
* ↑ 20 Stat. 30, as amended, now 18 U.S.C. § 3481.
* ↑ See generally 8 Wigmore, Evidence § 2250 (McNaughton rev. ed. 1961).
* ↑ Model Code of Evidence, Rule 201 (1942); Uniform Rules of Evidence, Rule 23(4) (1953).
* ↑ 56 A.B.A.Rep. 137-159 (1931); 59 A.B.A.Rep. 130-141 (1934); 9 Proceedings A.L.I. 202, 203 (1931).
* ↑ See Bruce, The Right to Comment on the Failure of the Defendant to Testify, 31 Mich.L.Rev. 226; Dunmore, Comment on Failure of Accused to Testify, 26 Yale L.J. 464; Hadley, Criminal Justice in America, 11 A.B.A.J. 674, 677; Hiscock, Criminal Law and Procedure in New York, 26 Col.L.Rev. 253, 258-262; Note, Comment on Defendant's Failure to Take the Stand, 57 Yale L.J. 145.
* ↑ See, e.g., State v. Pearce, 56 Minn., 226, 57 N.W. 652, 1065; Tines v. Commonwealth, 77 S.W. 363, 25 KyL.Rep. 1233; Hanks v. Commonwealth, 248 Ky. 203, 58 S.W.2d 394.
* ↑ It should be noted that the defendant's counsel did not request any additions to the instructions which would have brought but other possible reasons which might have influenced the defendant's decision not to become a witness. The California Constitution does not in terms prescribe what form of instruction should be given and the petitioner has not argued that another form would have been denied.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse