380 U.S. 609 (1965)
In a California court, petitioner Griffin was tried by jury and convicted of first-degree murder.1 He did not testify during the guilt phase of the trial, although he did testify at the separate penalty phase.2 The prosecution presented evidence placing Griffin with the deceased on the evening of her death in the alley where her body was found.3
The trial court instructed the jury on the defendant's right not to testify.4 It stated that if the defendant failed to deny or explain evidence or facts against him that he could reasonably be expected to deny or explain because of facts within his knowledge, the jury could take that failure into consideration as tending to indicate the truth of such evidence.5 The prosecutor argued to the jury that Griffin knew whether the victim had a beaten appearance when he left her apartment, how she got down the alley, how the blood got on the bottom of the concrete steps, how long he was with her in the box, how her wig got off, and whether he beat or mistreated her.6 The prosecutor emphasized that Griffin had not taken the stand to deny or explain these matters.7
Following the jury's verdict of guilty on the charge of first-degree murder, the death penalty was imposed after the penalty phase.8 The California Supreme Court affirmed the conviction and judgment.9 The United States Supreme Court granted a writ of certiorari to review the case after its decision in Malloy v. Hogan.10
Whether comment by the prosecution on the accused's silence, or instructions by the court that such silence is evidence of guilt, violates the Self-Incrimination Clause of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment?11
The Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.12
Yes. The prosecutor's comments on Griffin's failure to testify about facts within his knowledge, such as whether the victim had a beaten appearance when he left her apartment, constituted the equivalent of an offer of evidence of guilt based on silence.13 The trial court's instruction allowed the jury to consider the failure to deny or explain as tending to indicate the truth of the evidence against him.14 This practice imposes a penalty on the exercise of the constitutional privilege by making its assertion costly, as the comments highlighted that Griffin had not taken the stand to deny or explain the matters.15
The comment by the prosecution on the accused's silence and the court's instructions that such silence is evidence of guilt violate the Self-Incrimination Clause of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment.16 The conviction was reversed.
Related opinions on this issue
Justice Harlan concurred in the judgment but expressed great reluctance due to his disagreement with the incorporation doctrine applied in Malloy v. Hogan.17 He noted that the no-comment rule might be lost and justice still be done, rendering it a non-fundamental part of the Fifth Amendment that should not be imposed on the states but for Malloy.18 Harlan viewed incongruity within the limits of fundamental fairness as at the heart of the federal system and hoped the Court would return to the constitutional paths it had followed throughout its history.19
Justice Stewart dissented.20 He argued that the California comment rule is not a coercive device which impairs the right against self-incrimination.21 Rather, it is a means of articulating and bringing into the light of rational discussion a fact inescapably impressed on the jury's consciousness.22 He maintained that the petitioner was not compelled to testify and that the procedure protects the defendant against unwarranted inferences while recognizing the natural probative force of the facts at issue.23 Stewart concluded that so long as the constitutional command is obeyed, such matters of state policy are not for this Court to decide.24
He would affirm the judgment.25