Griffin v. California

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Griffin v. California, 380 U.S. 609 (1965), further incorporated through the Fourteenth Amendment the Fifth Amendment’s protection against self-incrimination, thereby making it binding on state legal proceedings. The Court held 6-2 that a defendant’s right against self-incrimination is violated when a state prosecutor or judge comments negatively to a jury about a defendant’s unwillingness to testify, implying that the defendant’s silence indicates guilt. The case involved a man convicted of murder and sentenced to death. At his trial, the prosecutor told the jury that the victim “Essie Mae is dead. She can't tell you her side of the story. The defendant won't.” The Supreme Court of California upheld the conviction. But in the majority opinion for the U.S. Supreme Court, Justice William O. Douglas wrote that such comments are "a remnant of the 'inquisitorial system of criminal justice’.” Griffin thus overturned Adamson v. California 332 U.S. 46 (1947).

Griffin later became controversial when Justice Antonin Scalia wrote in a dissent joined by three other justices in Mitchell v. United States, 526 U.S. 314 (1999), that “the Court's decision in 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.”


Caleb J. Fountain, “Silence and Remorselessness,” Albany Law Review 81, 1 (January 2018): 267-297; Kelsey Craig, “The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant,” Vanderbilt Law Review 69, 1 (January 2016): 249-284; Lissa Griffin, "Is Silence Sacred? The Vulnerability of Griffin v. California in a Terrorist World," William & Mary Bill of Rights Journal, 15, 3 (February 2007); 927-962; Craig M. Bradley, "Griffin v. California: Still Viable after All These Years,” Michigan Law Review, 79, 6 (May 1981):1290-1298; and Donald B. Ayer, "The Fifth Amendment and the Inference of Guilt from Silence: Griffin v. California After Fifteen Years," Michigan Law Review, 78, 6 (May 1980): 841–871.

John Kincaid

Last updated: May 2018