435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978)
The petitioner, Lakeside, was brought to trial in an Oregon state court on a charge of escape in the second degree.1 He had been an inmate of the Multnomah County Correctional Institution. On June 16, 1975, he received a special overnight pass requiring return by 10 o'clock the following evening, which he did not do.2
At trial, the defense presented testimony from a psychiatrist and three lay witnesses supporting the theory that the petitioner was not criminally responsible for his failure to return.3
At the conclusion of the evidence, the trial judge informed counsel that he intended to include an instruction.4 The instruction stated that under Oregon law a defendant has the option to testify and that no inference arises from choosing not to testify.5 Defense counsel objected to the instruction, arguing it was like waving a red flag in front of the jury, but the judge gave the instruction anyway to protect the defendant.6
The Oregon Court of Appeals reversed the conviction, holding that the better rule is not to give such instructions over the objection of competent defense counsel.7 The Oregon Supreme Court reinstated the conviction.8
The petitioner sought review in the United States Supreme Court, claiming violations of his privilege against self-incrimination and right to counsel, and the Court granted certiorari due to conflicting decisions in other courts.9
Whether the giving of a jury instruction that the defendant's failure to testify gives rise to no inference against him, over the defendant's objection, violates the Fifth and Fourteenth Amendments' privilege against compulsory self-incrimination?10
The Fifth Amendment privilege against compulsory self-incrimination applies to the states through the Fourteenth Amendment under Malloy v. Hogan.11 It prohibits adverse comment on a defendant's silence or instructions that such silence is evidence of guilt, as held in Griffin v. California.12 Such comment imposes a penalty on the exercise of the privilege by making its assertion costly.13 However, a protective instruction directing the jury that no adverse inference arises from the defendant's choice not to testify does not constitute compulsion or adverse comment.14
No. The established facts show that Lakeside did not testify at his Oregon trial for escape in the second degree, where the defense relied on psychiatric and lay testimony to argue lack of criminal responsibility.15 The trial judge gave the protective instruction over counsel's objection that it waved a red flag before the jury, stating it was necessary to protect the defendant.16 This instruction matches the type of cautionary charge that removes rather than invites adverse inferences from silence.17
The rule from Griffin addresses only adverse comments that penalize the privilege, whereas the instruction here fulfills the opposite purpose by directing jurors to disregard any such inference. The facts confirm no compulsion occurred because the instruction imposed no cost on Lakeside's decision not to testify and instead shielded that choice from unspoken prejudice.18 Federal constitutional law does not rest on the speculative assumptions that jurors would overlook the silence absent the instruction or would disobey it by drawing the forbidden inference.19
The giving of the protective jury instruction over the defendant's objection did not violate the Fifth and Fourteenth Amendments' privilege against compulsory self-incrimination.20
Related opinions on this issue
Justice Stevens dissented.21 He maintained that the Fifth Amendment protects even those whose truthful denials might appear incredible to a jury.22 Therefore it gives the defendant and counsel the absolute right to decide whether the accused will testify.23
He argued that Griffin forbids any state action that makes silence costly.24 A judge's instruction calling attention to the defendant's failure to take the stand has an undeniably adverse effect by directing jurors to consider what they might otherwise have overlooked.25 Stevens emphasized that the Constitution commits this critical strategic decision to the defendant and lawyer.26
They possess superior information and undivided loyalty to the client's interests rather than to a judge concerned with both conviction of the guilty and protection of the innocent.27 He concluded that because the state identified no strong reason for overriding the defendant's request, an ungrudging application of Griffin requires reversal when the instruction is given over objection.28
Whether the giving of such an instruction over defense counsel's objection violates the defendant's Sixth Amendment right to the assistance of counsel?29
The Sixth Amendment right to the assistance of counsel guarantees the defendant an advocate in an adversary system.30 It has never been understood to confer upon defense counsel the power to veto wholly permissible actions of the trial judge.31 The judge bears ultimate responsibility for ensuring the conduct of a fair and lawful trial under precedents such as Geders v. United States.32
No. The established facts establish that defense counsel objected to the protective instruction as part of a strategy to avoid any mention of Lakeside's silence. Yet the trial judge determined in the exercise of his duty that the instruction was necessary to protect the defendant and gave it anyway.33 Because the instruction itself is constitutionally permissible under the Fifth and Fourteenth Amendments, the judge's decision to deliver it does not implicate the right to counsel.34 The facts further show that allowing counsel to veto such a ruling would extend the right to counsel to nearly every permissible judicial action taken over objection, a result unsupported by the Sixth Amendment.35
The trial judge remains the governor of the trial for assuring its proper conduct, and the right to counsel does not transform every disagreement over jury instructions into a constitutional violation.36
The giving of the instruction over defense counsel's objection did not violate the defendant's Sixth Amendment right to the assistance of counsel.37