406 U.S. 605 (1972)
Petitioner Brooks was tried and convicted in the Circuit Court of Hamilton County, Tennessee, on charges of armed robbery and unlawful possession of a pistol.1 At the close of the State’s case, defense counsel moved to delay petitioner’s testimony until after other defense witnesses had testified.2 The trial court denied this motion on the basis of Tenn. Code Ann. § 40-2403, which requires that a criminal defendant desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case.3
Although the prosecutor agreed to waive the statute, the trial court refused, stating that if a defendant testifies he has to testify first.4 The defense called two witnesses, but petitioner himself did not take the stand.5
Following the denial of his motion for new trial, petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, which overruled his assignments of error, including his claim that the statute violated the State and Federal Constitutions.6 The Supreme Court of Tennessee denied review.7 The United States Supreme Court granted certiorari to consider whether the requirement that a defendant testify first violates the Federal Constitution.8
Whether a state statute requiring a criminal defendant desiring to testify to do so before any other defense testimony is heard violates the Fifth Amendment privilege against self-incrimination?9
The Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects the defendant's right to remain silent unless he chooses to speak in the unfettered exercise of his own will and to suffer no penalty for such silence.10 A statute that requires a defendant to testify first or not at all exacts a price for remaining silent at the close of the state's case by foreclosing later testimony.11 This cuts down on the privilege by making its assertion costly.12
Yes. The statute forced Brooks to choose at the close of the State's case whether to testify before his other witnesses or not at all.13 This imposed a penalty for his initial silence that constitutes the infringement of the right.14 The uncertainties in evidence strength meant Brooks could not know if his testimony would be necessary.15 The rule prevented him from making the choice in the unfettered exercise of his own will.16
The Tennessee statute violates the defendant's Fifth Amendment right against self-incrimination.17
Related opinions on this issue
Joined by Mr. Justice Blackmun And Mr. Justice Rehnquist
Chief Justice Burger dissented on the ground that the Constitution provides only that no person shall be compelled in any criminal case to be a witness against himself.18 Petitioner was not in fact compelled to be a witness against himself because he did not take the stand.19 The majority's holding under the Fifth Amendment is unsupported by any authority.20
The Tennessee rule merely requires the defendant to make the choice at a given point in time rather than subjecting him to significant compulsion.21 Burger concluded that the procedure does not violate the Fifth Amendment and would affirm the judgment below.22
Joined by The Chief Justice And Mr. Justice Blackmun
Justice Rehnquist dissented on the ground that since petitioner Brooks never took the stand it is difficult to see how his right to remain silent was in any way infringed by the State.23 Whatever may be the operation of the statute in other situations, petitioner cannot assert that it infringed his privilege against self-incrimination.24 Rehnquist emphasized that the statute regulates the order of proof and that the defendant retained the privilege inviolate throughout the trial.25
He would affirm the judgment.26
Whether such a statute infringes the defendant's right to due process by restricting counsel's ability to decide the timing of the defendant's testimony?27
The Due Process Clause of the Fourteenth Amendment guarantees the accused the guiding hand of counsel at every step in the proceedings against him.28 A statute that requires the accused and his lawyer to decide whether the defendant will testify without an opportunity to evaluate the actual worth of their evidence restricts the defense in the planning of its case.29 The statute deprives the accused of the guiding hand of counsel in the timing of this critical element of his defense.30
Yes. The trial court applied the statute to exclude Brooks from the stand for failing to testify first even though defense counsel sought to delay the decision until after other defense witnesses had testified.31 This restriction prevented counsel from assessing the strength of the other evidence before making the tactical choice about the timing of Brooks' testimony.32 The penalty of keeping the defendant off the stand entirely thereby deprived him of counsel's guidance on a matter of constitutional right.33
The statute infringes the defendant's right to due process.34
Related opinions on this issue
Justice Stewart joined Part II of the opinion of the Court.35 He concurred in the judgment of the Court.
Joined by Mr. Justice Blackmun And Mr. Justice Rehnquist
Chief Justice Burger dissented on the ground that the holding amounts to nothing more than the assertion that counsel may not be restricted by ordinary rules of evidence and procedure in presenting an accused's defense if it might be more advantageous to present it in some other way.36 Burger noted that countless rules of evidence and procedure may interfere with the guiding hand of counsel yet are not prohibited by the Constitution.37 He concluded that the Tennessee rule is a permissible regulation of the order of proof.38
Joined by The Chief Justice And Mr. Justice Blackmun
Justice Rehnquist dissented on the ground that the notion that the Sixth Amendment allows defense counsel to overrule the trial judge as to the order in which witnesses shall be called stands on its head the traditional understanding of the defendant's right to counsel.39 Defense counsel sits at the side of the accused, not to take over the conduct of the trial.40 Instead, counsel advises the accused as to the choices available to him within the limits of existing state practice and procedure.41
Rehnquist concluded that the statute does not violate the Fourteenth Amendment.42