Is Silence Sacred? The Vulnerability of Griffin v. California in a Terrorist World

INTRODUCTION The Supreme Court's interpretation of the Fifth Amendment's privilege against self-incrimination (hereafter "the privilege") has been neither clear nor consistent.1 For one thing, as many commentators have noted, analysis of the privilege has been "tyrannized by slogans."2 The Court's privilege jurisprudence has been marked by broad, high-sounding rhetoric that has not always matched an equally broad interpretation of the right. For another, the Court has exhibited two distinct and inconsistent approaches to the privilege. One approach interprets it broadly as the linchpin of an accusatorial system that insures that the government bears the burden of proving guilt without any help from the defendant.3 The other approach, based on text and history, interprets the privilege more narrowly as a protection against coercive methods of interrogation only.4 While in practice the two approaches often produce the same result, they clash in one important context - when the government is allowed to use a defendant's silence at trial as substantive evidence of guilt. Under the Supreme Court's decision in Griffin v. California,5 that use is not allowed: a prosecutor's comment to the jury on a defendant's failure to testify violates the privilege.6 In its most recent foray in this area, its 1999 decision in United States v. Mitchell,1 the Supreme Court extended Griffin's no-comment rule to sentencing, refusing to allow the sentencing court to rely on a defendant's silence to prove facts relevant to sentence.8 The Court held, inter alia, that the refusal to allow use of a defendant' s silence to prove the prosecution's case was one of the hallmarks of the U.S. criminal accusatory process.9 Justice Scalia dissented, joined by Chief Justice Rehnquist, Justice O'Connor and Justice Thomas.10 Justice Scalia argued that Griffin lacked historical and textual support, had been a constitutional "wrong turn," and should not be extended.11 Justice Thomas also dissented, but he argued that Griffin should be overruled outright.12 As the Mitchell decision indicates, several reasons demonstrate the need to reevaluate the constitutional basis for the no-comment rule at this time. The first reason is the uncertain mooring of the privilege doctrinally, as represented in the opinions in Mitchell. The second reason is the narrow majority in Mitchell for extending Griffin, the explicit or implicit willingness to overrule Griffin by two members of the Court, and the recent departure and replacement of two Justices in the Mitchell majority. The third reason is the privilege's perpetually disfavored status as an anti-truth-seeking right.13 Finally, of course, this disfavored status is particularly dangerous in light of the modern threat of domestic terrorism.14 A re-evaluation of the no-comment rule may be significantly aided by examining the United Kingdom's approach to the privilege, particularly its approach to using a defendant's silence at trial. Unlike the situation in the United States, in the United Kingdom, where there is no written constitutional text, the fact-finder is allowed to use a defendant' s silence as proof of guilt. 15 While the United States and the United Kingdom share a significant history with respect to the privilege, a history that established the right as an integral part of both criminal processes, the histories diverge following the colonial period. From that point onward, the United States construed the privilege more broadly as a limitation on the powers of government.16 This uniquely U.S. experience - and one that continued into the twentieth century - explains, to some extent, the differences that exist today. The other explanation is the United Kingdom's experience with Northern Ireland terrorism, an experience that ultimately changed not only criminal procedures relating to terrorists, but mainstream U.K. criminal procedure as well. It remains to be seen whether the U.S. experience with terrorism will lead to similar changes here. …