Also known as: fail to testify · failing to testify · failed to testify · adverse inference from silence
Written by attorneys — see sources below.
A criminal defendant's decision not to take the stand at trial. The Fifth Amendment bars the prosecution and the trial judge from commenting on that decision or inviting the jury to treat silence as substantive evidence of guilt. Upon timely request the defendant is entitled to a jury instruction directing that no adverse inference may be drawn from the choice to remain silent.
Felicity French stood trial for embezzlement. She elected not to testify. Her lawyer timely asked the court to tell the jury it could draw no adverse inference from her silence. The judge gave the instruction. The jury acquitted.
Fatou Fall was prosecuted for arson. She remained silent at trial. In final instructions the judge told jurors they could consider her failure to testify when deciding whether the state had proved guilt. The appellate court reversed the conviction.
Fumiko Fujimoto was convicted of fraud after the prosecutor repeatedly noted her failure to testify. The state supreme court found the comments unconstitutional but affirmed on harmless-error grounds. The reviewing court examined the entire record to decide whether the error contributed to the verdict.
Ruth Elizabeth Chapman and Thomas LeRoy Teale were convicted in a California state court upon a charge that they robbed, kidnaped, and murdered a bartender. Chapman was sentenced to life imprisonment and Teale to death. At trial both petitioners chose not to testify. The prosecutor took full advantage of a provision in the California Constitution allowing comment on a defendant's failure to testify, filling his argument to the jury from beginning to end with numerous references to their silence and inferences of guilt. The trial court also charged the jury that it could draw adverse inferences from petitioners' failure to testify. The trial took place before this Court decided Griffin v. California. On appeal the California Supreme Court acknowledged that petitioners had been denied a federal constitutional right by the comments on their silence but affirmed applying the State's harmless-error provision. The Supreme Court granted certiorari limited to these questions: where there is a violation of the rule of Griffin v. California, can the error be held to be harmless, and if so, was the error harmless in this case.
View caseFabian Flynn faced state theft charges and did not testify. The prosecutor urged the jury to infer guilt from his silence. The Supreme Court held that the Fifth Amendment prohibition on adverse comment applies to the states through the Fourteenth Amendment.
In October 1966, nineteen-year-old Gary Duncan stopped his car on Highway 23 in Plaquemines Parish, Louisiana, after seeing his two younger Negro cousins talking with four white boys near a formerly all-white high school that had recently experienced racial incidents. Duncan approached the group, spoke with the white boys, encouraged his cousins to leave, and was about to drive away when a dispute arose over whether he had slapped or merely touched one of the white boys on the elbow. At his trial in the Twenty-fifth Judicial District Court of Louisiana, the white boys and a white onlooker testified that Duncan had slapped Herman Landry, while Duncan and his cousins testified that he had only touched the boy. The trial judge found Duncan guilty of simple battery beyond a reasonable doubt. Under Louisiana law, simple battery is a misdemeanor punishable by a maximum of two years' imprisonment and a three-hundred-dollar fine. Duncan requested a jury trial, but the trial judge denied the request because the Louisiana Constitution provides for jury trials only in cases where capital punishment or imprisonment at hard labor may be imposed. Duncan was convicted by the judge alone and sentenced to sixty days in the parish prison and a fine of one hundred fifty dollars. Duncan sought review in the Supreme Court of Louisiana, which denied his application for a writ of certiorari. He then petitioned the United States Supreme Court pursuant to 28 U.S.C. § 1257(2), alleging that the denial of a jury trial violated his rights under the Sixth and Fourteenth Amendments. The Supreme Court noted probable jurisdiction and set the case for argument along with a related case.
View caseFlora Ford was arrested and invoked her right to remain silent during police questioning. At trial she again chose not to testify. The court permitted comment on her post-arrest silence only after she testified inconsistently with her earlier statements.
In March 1963 Ernesto Miranda was arrested at his home in Phoenix and taken to the police station where he was identified by the complaining witness. He was then questioned by two officers in Interrogation Room No. 2 for two hours. The officers did not advise him of any right to counsel. Miranda signed a typed confession that was introduced at his trial for kidnapping and rape. On October 14 1960 Michael Vignera was arrested in connection with a Brooklyn robbery. He was taken first to the 17th Detective Squad headquarters in Manhattan and later to the 66th Detective Squad. A detective questioned him for several hours without any advice concerning counsel. Vignera made an oral admission. He was then questioned by an assistant district attorney whose transcribed statement was also introduced at his trial for first-degree robbery. On March 20 1963 Carl Calvin Westover was arrested by Kansas City police as a suspect in two local robberies. Kansas City police interrogated Westover on the night of his arrest. The next day local officers interrogated him again throughout the morning. Westover was then turned over to FBI agents who questioned him for two to two-and-a-half hours about California robberies and obtained signed confessions. At the time the FBI agents began questioning Westover he had been in custody for over fourteen hours. On January 31 1963 Roy Allen Stewart was arrested at his home in connection with a series of purse-snatch robberies. During the next five days police interrogated Stewart on nine different occasions without any advice of rights. On the ninth session Stewart confessed. Transcripts of the interrogations were introduced at his trial for kidnapping rape and murder. The Arizona Supreme Court affirmed Miranda's conviction. The New York courts affirmed Vignera's conviction. The Ninth Circuit affirmed Westover's conviction. The California Supreme Court reversed Stewart's conviction. The Supreme Court granted certiorari in the four cases and consolidated them for argument.
View caseFelipe Figueroa was tried for murder. In closing the prosecutor repeatedly called the state's evidence unrefuted. Defense counsel had already highlighted the defendant's silence in opening statement. The Court held the comments did not violate the Fifth Amendment.
Sandra Lockett was charged in Ohio with aggravated murder with two aggravating specifications and with aggravated robbery after a pawnbroker was killed during a robbery in which she participated. The State's primary evidence came from the testimony of coparticipant Al Parker. Parker had pleaded guilty to murder in exchange for dismissal of the robbery charge and the specifications that would have exposed him to the death penalty. Lockett had become acquainted with Parker and Nathan Earl Dew in New Jersey before they traveled together to her hometown of Akron, Ohio, where Parker and Dew needed money for their return trip. After Lockett rejected suggestions to pawn a ring, the group discussed robbing a grocery store and a furniture store. Lockett warned about the grocery operator's size and weapon and offered to retrieve a gun from her father's basement. When those stores closed, someone suggested robbing a pawnshop instead. Lockett's brother and Dew would enter pretending to pawn a ring. Parker would enter with bullets, load a gun, and rob the shop. Lockett would guide them to the location but remain outside because she knew the owner. The next day the four gathered at a friend's apartment, confirmed they were proceeding with the plan, drove by the pawnshop several times, and parked. Parker entered the pawnshop, announced a stickup, and the gun discharged when the pawnbroker grabbed it, killing him. Parker returned to the waiting car where Lockett had the engine running. She took the gun, placed it in her purse, and later hid it under the taxicab seat when police stopped them. After release, Lockett hid Parker and Dew in the attic when police arrived at her home. Parker later testified against her at trial. Lockett rejected three plea offers, including one to voluntary manslaughter and aggravated robbery carrying a twenty-five-year maximum and one to aggravated murder without specifications carrying a mandatory life sentence. At trial the defense presented no witnesses after Lockett followed her mother's advice not to testify. The court instructed the jury on aiding and abetting. It also instructed on the presumption that participants in a robbery acquiesce in whatever is reasonably necessary to accomplish it. This included that an intent to kill could be found if the robbery was reasonably likely to produce death. The jury convicted Lockett of aggravated murder with specifications. Before sentencing the trial judge received a presentence report and psychiatric and psychological reports describing Lockett as a twenty-one-year-old with low-average or average intelligence, no psychosis or mental deficiency, a favorable prognosis for rehabilitation, a juvenile and adult record of only minor offenses, and progress in drug treatment at a clinic. The Ohio death penalty statute required the judge to impose death unless he found by a preponderance of the evidence that the victim induced or facilitated the offense, that the offender acted under duress, coercion, or strong provocation, or that the offense was primarily the product of psychosis or mental deficiency. After reviewing the reports the judge concluded none of the three statutory mitigating circumstances existed and sentenced Lockett to death. The Ohio Supreme Court affirmed the conviction and death sentence. The United States Supreme Court granted certiorari.
View caseNo. The Fifth Amendment forbids both the prosecutor and the trial judge from inviting the jury to treat a defendant's silence as evidence of guilt. Any such instruction is unconstitutional.
Supporting sources
Upon a timely request the defendant is constitutionally entitled to an instruction that the jury must not draw any adverse inference from the decision not to testify.
Supporting sources
Yes. A trial judge sitting as factfinder may not rely on a defendant's failure to testify as substantive evidence of guilt. Judicial comments linking silence to an inference of guilt violate the Fifth Amendment.
Supporting sources
A prosecutor may note that certain evidence is uncontradicted provided the argument does not invite the jury to draw an adverse inference from the defendant's personal decision not to testify.
Supporting sources
…admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify. India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon the general ban on police-adduced confessions cited by the Court is subject to a major…