450 U.S. 288, 101 S. Ct. 1112 (1981)
On December 22, 1978, Officer Deborah Ellison of the Hopkinsville, Kentucky, Police Department noticed something in the alley between Young's Hardware Store and Edna's Furniture Store while on routine patrol.1 She backed her car up, flashed her spotlight down the alley, and saw two men stooped alongside one of the buildings who then ran off.2 Soon after receiving Ellison's call, Officer Leroy Davis saw two men run across a street near where he had been patrolling.3 The two men ran in opposite directions, and Davis pursued one of them.4 During the chase Davis saw the man drop a gym bag and a radio tuned to a police band.5 Davis stopped the man, who was identified as petitioner Lonnie Joe Carter.6 When apprehended Carter was wearing gloves but no jacket.7 While Davis pursued Carter, Officer Ellison found two jackets and merchandise removed from the hardware store in the alley.8
The petitioner was indicted for third-degree burglary of Young's Hardware Store.9 The indictment also charged him with being a persistent felony offender in violation of Ky. Rev. Stat. § 532.080 on the basis of previous felony convictions.10 At trial the prosecution called Officers Ellison, Davis, another officer, and the store owner.11 Defense counsel conferred with the petitioner outside the jury's hearing about the risk of impeachment with prior convictions if he testified.12 The petitioner decided not to take the stand.13 Upon returning to open court, defense counsel requested that the jury be instructed that the defendant is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way.14 The trial court refused the request.15
The jury found the petitioner guilty of burglary and recommended a sentence of two years.16 After the recidivist phase in which the prosecutor presented evidence of prior convictions, the jury found the petitioner guilty as a persistent offender and sentenced him to the maximum term of twenty years.17 The Supreme Court of Kentucky affirmed the conviction.18 The court pointed to Ky. Rev. Stat. § 421.225 (Supp. 1980), which provides that in any criminal prosecution the defendant's failure to testify shall not be commented upon or create any presumption against him. The court cited its prior decision in Green v. Commonwealth that the requested instruction would require the judge to comment upon the defendant's failure to testify.19 The United States Supreme Court granted certiorari.20
Whether the Fifth and Fourteenth Amendments require a state criminal trial judge to give a requested jury instruction that a defendant's failure to testify cannot be used as an inference of guilt and should not prejudice him in any way?21
The Fifth Amendment privilege against compulsory self-incrimination, made applicable to the states through the Fourteenth Amendment, requires that upon a defendant's timely request a trial judge must instruct the jury that no adverse inference may be drawn from the defendant's failure to testify.22
Yes. The facts show that after the prosecution rested Carter faced a choice between testifying and risking impeachment with his prior felony convictions or remaining silent.23 Defense counsel explained the impeachment risk to Carter outside the jury's presence, and Carter elected not to testify.24 Counsel then requested the precise no-adverse-inference instruction, but the trial court refused.25
Without the instruction the jury was left to speculate about Carter's silence during summation when the prosecutor noted that several points were not controverted and that any reasonable explanation was not in the record.26 The Kentucky courts upheld the refusal under state law that bars comment on silence.27 The Supreme Court's precedents establish that the Fifth Amendment forbids both prosecutorial comment and the absence of a requested limiting instruction that would otherwise allow jurors to treat silence as evidence of guilt.28
The trial court's refusal to give the requested instruction violated the petitioner's rights under the Fifth and Fourteenth Amendments.29
Related opinions on this issue
Justice Powell concurred in the judgment but wrote separately to clarify that the result follows from precedent rather than his preferred interpretation of the Constitution.30 He explained that he would have joined the dissent in Griffin v. California because the Self-Incrimination Clause protects against compulsion to testify, not against jurors drawing logical inferences from silence.31 Nevertheless, since Griffin is established law, the petitioner was entitled to the requested instruction in this case.32
Powell emphasized that the constitutional guarantee focuses on compulsion and that the present holding rests on the extension of Griffin rather than an independent textual command.33
Joined by Justice Brennan
Justice Stevens, joined by Justice Brennan, concurred to emphasize the limited scope of the holding.34 He stressed that the decision applies only when the defendant has requested the no-inference instruction.35 In his view, the choice whether to seek such an instruction, like the choice whether to testify, belongs to the defendant and his counsel rather than being imposed by the state.36
This preserves the strategic autonomy of the defense in managing the presentation of the case and avoids any state-imposed interference with defense tactics at trial.37
Justice Rehnquist dissented, contending that the majority improperly extends constitutional doctrine into an area properly left to state procedural rules.38 He noted that the federal statute underlying Bruno v. United States does not apply to Kentucky trials, and that Griffin itself reserved the question presented here.39 Rehnquist argued that the Court should not impose the instruction requirement on state courts, as the formulation of such procedural rules is a matter of local concern, and the Constitution does not mandate this particular safeguard against jury speculation.40