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California - Wikipedia

Griffin v. California
From Wikipedia, the free encyclopedia

Griffin v. California, 380 U.S. 609 (1965), was a United States Supreme
Court case in which the Court ruled, by a 6-2 vote, that it is a violation of a Griffin v. California
defendant's Fifth Amendment rights for the prosecutor to comment to the jury on
the defendant's declining to testify, or for the judge to instruct the jury that such
silence is evidence of guilt.[1]

The ruling specified that this new extension to defendants' Fifth Amendment
rights was binding on all States through the Due Process Clause of the
Fourteenth Amendment. This "no-comment rule" had already been binding on Supreme Court of the United States
the federal government's courts because of an 1878 law. Argued March 9, 1965
Decided April 28, 1965
Full case Griffin v. California
name
Contents Citations 380 U.S. 609 (https://su
preme.justia.com/us/38
1 Background of the case 0/609/case.html) (more)
2 History and legal background
Prior history Defendant convicted,
3 The ruling California court;
3.1 Justice Harlan's concurrence affirmed, California
3.2 The dissent Supreme Court.
4 Significance and Criticism Subsequent Subsequent trial ended
5 Subsequent events in the case history in a mistrial; third trial
6 References found defendant guilty
of murder.
Holding
Background of the case Prosecutor's reference in closing
argument to defendant's exercising his
Edward Dean Griffin was convicted of the murder of Essie Mae Hodson before right to refuse to testify, and instruction
a jury in a California court. Griffin had been invited into an apartment shared by allowing jury to consider it, violated that
right. California Supreme Court ruling
Hodson and her boyfriend, Eddie Seay. After going to bed, Seay was awakened
reversed
by noise; he saw Griffin and Hodson struggling, and Hodson said Griffin had
tried to force her to have sex. After Seay locked Griffin outside the apartment, Court membership
Griffin broke back into the apartment and struck Seay, who ran to a bar for help. Chief Justice
Upon returning, Griffin and Hodson were gone. In the morning, a witness saw Earl Warren
Griffin, buttoning up his pants, coming out of a very large trash box in an alley Associate Justices
about 300 feet from Hodson's apartment. The witness found Hodson in the trash Hugo Black William O. Douglas
box, bleeding and apparently in shock. She died at a hospital the next day from Tom C. Clark John M. Harlan II
her injuries.[2] Griffin, who already had multiple felony convictions, did not testify William J. Brennan, Jr. Potter
at the trial.[3] Stewart
Byron White Arthur Goldberg
As the U.S. Supreme Court said in its ruling, the prosecutor in the final argument Case opinions
to the jury "made much of the failure of [Griffin] to testify": Majority Douglas, joined by
Black, Clark, Brennan,
Goldberg
Essie Mae is dead. She can't tell you her side of the story. The
defendant won't. Concurrence Harlan
Dissent Stewart, joined by
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The judge, in his instructions to the jury, stated that a defendant has a White
constitutional right not to testify, and that this did not create a presumption of Warren took no part in the consideration or
guilt, nor reduce the need for the prosecution to prove its case; but also stated to decision of the case.
the jury: Laws applied
U.S. Const. amend. V, by way of XIV
As to any evidence or facts against him which the defendant can
reasonably be expected to deny or explain because of facts within
his knowledge, if he does not testify or if, though he does testify, he
fails to deny or explain such evidence, the jury may take that failure
into consideration as tending to indicate the truth of such evidence.

This jury instruction was valid under the California Constitution, whose "comment practice" clause in Article I stated at the
time, "[I]n any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any
evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by
the court or the jury."

Griffin was convicted and sentenced to the death penalty. The California Supreme Court affirmed the conviction, and
subsequently the U.S. Supreme Court granted certiorari to determine "whether comment on the failure to testify violated the
Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v.
Hogan."

History and legal background

Until the late 19th century, defendants in criminal trials in the United States were not allowed to testify. Starting in 1864, the
States started to allow this practice, until by the end of the 20th century, Georgia was the only State that still prohibited
testimony from the defendant.[4]

A new concern was that although under the Fifth Amendment no defendant could be forced to testify, now that testifying
was permitted, "the failure of a defendant to testify would be seen as a confession of guilt and that jurors would draw this
inference regardless of any instructions they might receive."[5] To help reduce the impact or the likelihood of this inference,
the federal government passed a law in 1878 called the "no-comment rule", prohibiting prosecutors from commenting on
the failure to testify, and prohibiting any presumption against the defendant based on his failure to testify.[5] (This law is
currently 18 U.S.C. 3481 (https://www.law.cornell.edu/uscode/text/18/3481).)

This federal law applied only to the federal courts, and because of the principle of federalism, the States made their own
decisions on this matter. For example, the California Constitution explicitly permitted counsel and the judge to comment on
the failure to testify.

In two rulings before Griffin, Twining v. New Jersey (1908) and Adamson v. California (1947), the Supreme Court
upheld state laws allowing such adverse comments, ruling that even if adverse comments did violate defendants' Fifth
Amendment rights, the Fifth Amendment did not bind the States. In Malloy v. Hogan (1964), the Court reversed this
stance, ruling that the Due Process Clause of the Fourteenth Amendment extended Fifth Amendment protections against
self-incrimination to State trials.

The ruling
Justice Douglas wrote for the Court that a prosecutor's or judge's comment to the jury about a defendant's refusal to testify
"is a remnant of the 'inquisitorial system of criminal justice', which the Fifth Amendment outlaws. It is a penalty imposed by
courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly."
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The Court then noted that an objection to this logic might be that a jury might find it "natural and irresistible" to infer the guilt
of a defendant who refused to testify while possessing facts about the evidence against him, and so a judge's commenting
upon the refusal did not "magnify that inference into a penalty for asserting a constitutional privilege"; but went on to state
that a judge's comment on the refusal "solemnizes the silence of the accused into evidence against him."

In a footnote, the Court noted that this ruling was "no innovation", because a majority of the Court had already written in
Adamson v. California (1947) that California's "comment practice" violated the Fifth Amendment. At the time, however,
the Court had not yet ruled that the Fourteenth Amendment made the Fifth Amendment applicable to the States.

Justice Harlan's concurrence

Justice Harlan concurred "with great reluctance", agreeing with the Court that "within the federal judicial system the Fifth
Amendment bars adverse comment by federal prosecutors and judges on a defendant's failure to take the stand in a
criminal trial", but writing that this "no-comment" rule was a "non-fundamental" part of the Fifth Amendment, and that he
would only apply it to the States because of the previous term's Malloy v. Hogan decision. (Justice Harlan had dissented
from the Malloy decision, writing that the "compelled uniformity" of applying the Fifth Amendment to the States "carries
extremely mischievous, if not dangerous, consequences for our federal system".[6]) Justice Harlan wrote that state and
federal courts need not run by the same rules and that cases such as Griffin showed that the practical tendency had been
for the federal judiciary to override the state judiciary, which was contrary to the basic idea of federalism; and that he
hoped "that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its
history."

The dissent

Justice Stewart, joined by Justice White, dissented, writing that the Fifth Amendment states that no person "shall be
compelled in any criminal case to be a witness against himself", and that California's "comment rule" did not "compel" the
defendant nor anyone else to testify. Also, "the California procedure is not only designed to protect the defendant against
unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and
articulate what it believes to be the natural probative force of certain facts."

Justice Stewart wrote that the formulation of such rules "is properly a matter of local concern", and noted that the American
Bar Association and the American Law Institute had endorsed the "comment" practice.

Significance and Criticism

In Mitchell v. United States (1999), the Court extended Griffin's no-comment rule to the sentencing phase of State
trials.[7] Justice Scalia wrote in his dissent that Griffin "did not even pretend to be rooted in a historical understanding of
the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional
command," and that "To my mind, Griffin was a wrong turn -- which is not cause enough to overrule it, but is cause
enough to resist its extension." This dissent was joined by three other Justices, including Justice Thomas, who added in a
separate dissent that Griffin "lacks foundation in the Constitution's text, history, or logic", and should be overruled outright.

A 1980 article in the Michigan Law Review stated that Griffin occurred "at the peak of [the Supreme Court's] enthusiasm
to expand the constitutional protections of criminal defendants", and that it has "impaired the effective operation of the
criminal justice system", automatically reversing cases where the defendant's silence is mentioned but being a "complete
failure to address the much more common situation in which no comment is made by judge or prosecutor but the jury
nonetheless concludes that the defendant is guilty because he has nothing to offer in his own defense."[8]

Great American Court Cases wrote that the Griffin ruling "preserved the presumption of innocence to which a defendant
is constitutionally entitled."[9]

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The United Kingdom had a no-comment rule similar to that established in Griffin, but the rule was reversed in Northern
Ireland in 1988 as a response to IRA terrorism, and then the reversal spread throughout the United Kingdom.[10] Using
this reversal as an argument, a 2007 article in the William & Mary Bill of Rights Journal argued that "Griffin's no-
comment rule has never faced a challenge as daunting as that posed by modern domestic terrorism", and that it is currently
"vulnerable" to reversal.[11]

Subsequent events in the case

After the U.S. Supreme Court's reversal of Griffin's conviction, he was tried again for murder, and a mistrial was declared
when the jury was deadlocked 2 to 10 in favor of a second-degree murder conviction. In his third trial, the jury found
Griffin guilty of first-degree murder and sentenced him to death. Upon automatic appeal (because of the jury's
recommendation of the death penalty), the court reversed the trial court's judgment of conviction and imposition of the
death penalty.[12]

References

1. Douglas, William O. (1965). "Griffin v. California, 380 U.S. 609 (1965)" (http://caselaw.lp.findlaw.com/scripts/get
case.pl?court=US&vol=380&invol=609). U.S. Supreme Court.
2. People v. Edward Dean Griffin, 66 Cal. 2d 459; 426 P.2d 507; 58 Cal. Rptr. 107; 1967 Cal. LEXIS 317 (http://
www.lexisnexis.com/clients/CACourts/) (Supreme Court of California April 25, 1967).
3. Knight, Alfred H. (1998). The Life of the Law (https://books.google.com/books?id=iKhauatvig4C&pg=PA89&lpg
=PA89&dq=%22essie+mae%22+griffin). USA: Oxford University Press. p. 89. ISBN 978-0-19-512239-8.
4. Griffin, Lissa, p. 934.
5. Griffin, Lissa, p. 935.
6. Harlan, John Marshall II (1964). "Dissent, Malloy v. Hogan, 378 U.S. 1 (1964)" (http://caselaw.lp.findlaw.com/scri
pts/getcase.pl?navby=case&court=US&vol=378&page=1). United States Supreme Court.
7. Griffin, Lissa (February 2007). "Is Silence Sacred? The Vulnerability of Griffin v. California in a Terrorist World" (htt
p://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1468&context=lawfaculty). William & Mary Bill of Rights
Journal. New York, NY: Pace Law Faculty Publications. 15 (3): 928. Retrieved 22 January 2009.
8. Ayer, D B (May 1980). "Fifth Amendment and the Inference of Guilt from Silence Griffin v. California After Fifteen
Years" (http://www.ncjrs.gov/App/publications/Abstract.aspx?id=72566). Michigan Law Review. 78 (6): 841
871. JSTOR 1288343 (https://www.jstor.org/stable/1288343). doi:10.2307/1288343 (https://doi.org/10.2307%2F
1288343). Retrieved 22 January 2009.
9. "Griffin v. California" (http://law.jrank.org/pages/12979/Griffin-v-California.html). Great American Court Cases Vol
8. 8.
10. Griffin, Lissa, p. 950.
11. Griffin, Lissa, p. 961.
12. People v. Edward Dean Griffin, 66 Cal.2d 459 (April 25, 1967).

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