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Thursday, June 20, 2013

Two and a Half Reasons to Overrule Griffin

Earlier this week, I mentioned as an aside that I appreciated Justice Thomas's call to overrule Griffin v. California (which forbids judicial and prosecutorial comment on a defendant's exercise of his right not to testify).  I don't have anything terribly profound to say about why, but since that view seemed to surprise and displease some people, I thought I'd say more about my thinking.

First, Griffin is probably wrong.  As Justices Thomas and Scalia discuss in their separate dissents in Mitchell v. United States, there's little reason to believe that the no-commenting-on-defendants'-silence rule has a historical basis, nor is it a straightforward reading of the text of the Fifth Amendment.   Petitioner's merits brief in Salinas did a creditable job of finding 19th century cases that supported the Griffin rule (see the three citations on page 13 of the brief), but the record is still pretty thin.

Second, the system would probably be more legitimate-- and might even be more accurate-- if defendants testified more.  The current incentives are rigged to discourage defendants from testifying-- even defendants who have something they'd like to say.  Nobody can comment on the defendants' failure to testify, and if the defendant does testify, prior convictions or other damaging impeachment evidence can come in. (See.)  Ideally, I'd scrap the Griffin rule and the use of prior convictions for impeachment as a package, but even scrapping one or the other would be an improvement.

Third, I don't think it makes much sense for the Constitution to regulate most of prosecutors say during opening and closing argument.  Criminal cases are full of litigation about various kinds of improper comments and prosecutorial misconduct for the things prosecutors tell the jury, and the whole enterprise strikes me as misguided (with the exception of statements that describe inadmissible evidence).  The prosecutor's comments are not the law.  The defense attorney can disagree with them.  The judge can tell the jury they are not the law.  The jury should know they are not the law.  If we think the criminal trial system currently doesn't work that way-- that juries take what the prosecutors say at face value even if the defense attorney vigorously disagrees and the judge tells them that both sides are advocates-- we have much bigger problems.  After all, the prosecutor also tells the jury that the defendant is guilty, and the game is over if the jury takes that at face value.

Now, I don't mean to sound too optimistic about criminal trials.  It may well be that we do indeed have much bigger problems and that the system is rigged to make the prosecutor a functional authority in the courtroom.  But if that's true, then abolishing the Griffin rule is probably harmless.  So under the optimistic view of the process, juries can be trusted to weigh the prosecution's and the defense's explanations for the failure to testify; and under the pessimistic view of the process the jury probably assumes the defendant's guilt anyway.

This third argument, to be sure, only applies to comments by the prosecution; comments by the court are more complicated.  Griffin involved both, though most of the subsequent cases have been about prosecutors.  I think there would be some wisdom (whether or not there would be some constitutional legitimacy) in retaining the Griffin rule for courts, even if prosecutors are allowed to comment.

But all of these thoughts are quite provisional, and some of them rely on quasi-empirical guesswork. I'd welcome any thoughts about why I am wrong.

Posted by Will Baude on June 20, 2013 at 01:55 AM in Criminal Law | Permalink


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I think that would be pretty shocking if prosecutors could say anything to jurors as long as they don't describe inadmissible evidence. If you really mean *anything*, then in such a world it would be totally okay for a prosecutor to tell the jury, "I personally guarantee you as a Christian that the defendant is guilty." And there are lots of more provocative examples, such as explicit appeals to racism ("We need to lock up those people and teach them a lesson," etc.) I trust you don't mean to say that should be okay.

On the policy issue (#3), I strongly disagree that it would be better to let prosecutors comment on a defendant's failure to testify. Putting aside the problem that it would be near impossible to change the impeachment rules, the bigger problem is confirmation bias. Most jurors already suspect that a defendant who elects not to testify is probably guilty. To most jurors, it just seems really weird to think that an innocent person might not want to testify and explain their innocence. If they don't hear anything about the defendant's failure to testify, they might just think it an oddity and won't focus on on it too much. Eliminating mention of that fact deemphasizes it. But given the realities of confirmation bias, if they *do* hear about it at trial from both sides, they are likely to believe the side that matches their preconceived views. They'll believe the prosecutor's version of the story because it matches their suspicion. Now you might say, well, wait, that suspicion is often true: We would certainly hope that most defendants are guilty, and presumably the ones who don't testify are probably even more likely to be guilty. But we fear an innocent person going to jail more than a guilty person going free, so the effects of confirmation bias would be particular damaging in that context.

Posted by: Orin Kerr | Jun 20, 2013 2:55:32 AM

Will, I'm not sure I understand the full extent of what you want the rule to be. Would your proposed rule allow a judge at a bench trial to draw an adverse inference from a defendant's refusal to testify? If so, how do you address the argument that punishing a defendant for exercising a constitutional right effectively nullifies the right? If not, how can you justify allowing the prosecutor to encourage the jury to draw an adverse inference, even if the judge subsequently tells them they're not allowed to?

Posted by: Griff | Jun 20, 2013 10:14:57 AM


I did have in mind the kinds of provocative examples you describe. Maybe I am naive to think that they are unlikely to cause the jury to behave unfairly; or maybe I am cynical to think that juries already think that way, and defendants would be better served by having those views (and disagreement with them!) aired. But the point you raise about confirmation bias is an interesting and subtle one.

By the way, I should be clear that I don't think these statements should be unregulated by the rules of criminal procedure-- just that whatever statements are permitted by a court's rules should be tolerated by the Constitution.


I haven't thought the details through fully, but I'm envisioning that inferences would be permissible but not mandatory, and the judge would say something to that effect.

Posted by: William Baude | Jun 20, 2013 10:59:58 AM

So you don't find the argument about penalizing the exercise of rights persuasive? Would you similarly permit an adverse inference to be drawn from, for example, the fact that the defendant exercised his right to counsel rather than representing himself (surely an innocent man wouldn't need a fancy lawyer; he could just let the facts speak for themselves!)?

Posted by: Griff | Jun 20, 2013 11:10:01 AM

I think there is quite a respectable Fifth Amendment basis for Griffin. A defendant in a criminal case is subject to compulsion -- he is being compelled to defend a criminal charge and faces punitive sanctions if he fails to do so. This is precisely why a defendant has a Fifth Amendment right not to testify -- he cannot be "compelled" to be a witness in a criminal prosecution by virtue of the Fifth Amendment. But, if the prosecutor is free to use the defendant's silence as evidence of his guilt, then the defendant effectively become a witness for the prosecution since his silence is being used for a testimonial (and incriminating) purpose. As for history, at the time of the framing of the Fifth Amendment, the rule was that defendants in criminal cases were not permitted to testify because they were regarded as interested parties. So, framing-era practice, properly contextualized, tells us little about how to apply the Fifth Amendment in an era in which a defendant is permitted (indeed has a right) to testify. (BTW, Justice Scalia does not quite get the history right in Mitchell, see the Langbein book). Indeed, Justice Thomas's concurrence in Hubbell, joined by Justice Scalia, explained that in the framing era, the Fifth Amendment was violated whenever the defendant was compelled to supply evidence to the prosecution, even if the defendant was not literally compelled to provide sworn testimony. That is exactly what happens when a prosecutor is permitted to make evidentiary use of the defendant's failure to testify, no?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 20, 2013 11:12:05 AM

Permissively rather than mandatorily? Sure, I think so. And similarly, there is some reason to suspect juries do so anyway. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901610

Posted by: William Baude | Jun 20, 2013 11:12:45 AM

I mean, I think there's excellent reason to suspect that many jurors draw an adverse inference merely from the fact that the defendant was arrested and charged with a crime (i.e. don't respect the presumption of innocence). Surely that isn't a good reason to allow the prosecutor to finish his closing by disparaging the presumption of innocence and telling the jury to disregard it.

Posted by: Griff | Jun 20, 2013 11:26:22 AM

Will, thanks for your answer, although it leaves me a little unclear as to whether you're arguing a point about what is good policy or arguing a point about what should be covered by constitutional rules and what should be covered by non-constitional rules. If you're arguing good policy, I wonder if you think we should get rid of the rules of evidence entirely. After all, why should what the jurors hear be limited by technicalities like "relevance," "unfair prejudice," and "hearsay"? If we trust juries to figure out the truth, you might say, then we should *really* trust juries: Make trials "no holds barred" and let any argue anything, no matter how outrageous, irrelevant, inflammatory, or unfair. I personally think that would be, well, totally nuts.

Posted by: Orin Kerr | Jun 20, 2013 12:15:32 PM

Orin, I'm thinking about the constitutional point; but most people who aren't originalists or who temper originalism with stare decisis tend to think policy is relevant to a decision about whether to overrule a constitutional decision, so the policy question becomes relevant. But it's still a policy question about what kind of law and lawmaker should decide a certain kind of question.

As for the rules of evidence. I tend to think that in many cases rules of evidence and jury instructions act as substitutes for one another, and I'm not convinced that the Constitution requires a fair trial to have both-- maybe it requires at least one, although I'm not even sure about that. I am inclined to think that some rules of evidence and some jury instructions are good ideas, even if the Constitution doesn't require them, though.

Posted by: William Baude | Jun 20, 2013 2:08:16 PM

Jury instructions are like the closing credits of a long movie. They appear after the show is over when no one is paying attention, and they pass too quickly for anyone to notice them.

Posted by: Orin Kerr | Jun 20, 2013 5:39:57 PM

Agreed. Yet many people think closing arguments matter. Maybe we should reframe jury instructions as a closing argument from the judge, after both lawyers go.

Posted by: William Baude | Jun 20, 2013 5:47:02 PM

Thanks for this provocative post (and thanks for linking to my piece critiquing the curious package of legal incentives that silence defendants at trial). I wrote a follow up piece that parallels this debate, attempting to craft a more compelling constitutional footing for Griffin, and finding it (only) where prior conviction are in play as you suggest -- and as was powerfully apparent in the facts of Griffin itself. The article can be found at the link below and might be of interest to those following this thread:


Posted by: J Bellin | Jun 20, 2013 6:37:41 PM

Will, today the Fourth Circuit decided a federal death penalty appeal, U.S. v. Hager: http://www.ca4.uscourts.gov/Opinions/Published/084.P.pdf (pp. 75-81 of the lengthy pdf)
One of the many issues was a claim that the prosecutor violated the Fifth Amendment by commenting on the defendant's choice not to testify when he argued that the defendant had not shown remorse for the killing ("The defendant, to this day, has never expressed any remorse for the killing...."). In fact, lack of remorse was presented as a non-statutory aggravating factor.

The Fourth Circuit ultimately found that any error was harmless, but I wonder what your thoughts are on the notion of a hypothetical unbound-by-Griffin prosecutor saying "he's exercised his right to silence = he shows no remorse = that's a reason to kill him." Am I right, after reading this thread, to suspect you'd prefer to deal with that under the Eighth Amendment or by amending the Federal Death Penalty Act?

Posted by: Milbarge | Jun 20, 2013 11:56:57 PM

Milbarge, yes. Although in that specific circumstance I'd be inclined to allow the comment.

Posted by: William Baude | Jun 21, 2013 12:36:01 AM

To me the problem with the Griffin rule is how it screws up the analysis of sufficiency of the evidence. I would leave in the rule that the prosecutor can't directly comment on the failure to testify (thereby eliminating much of the current litigation about what qualifies as an indirect comment)but get rid of the no inference instruction.

My reasoning is that it allows us to take a more practical approach to sufficiency of the evidence. Common sense tells us that whether we are dealing with a civil or criminal case there is a point where the party with the burden of proof has put on enough evidence to support their theory of the case that a reasonable person would want/expect the other side to put on some evidentiary support for the alternative version. By getting rid of the no-adverse inference/improper burden shifting rhetoric, you can get down to the ultimate question.

For example, a defendant is part of a group of people who went to a house where some of them yelled at the owner over a prior incident and then one of the group shot the owner. We can argue over how much evidence is necessary before a jury can conclude that the defendant was at least an accomplice. But it is easier to have that discussion if we acknowledge that at some point the State has shown enough of an association between the defendant and the group that, before the defendant can legitimately claim to be an innocent bystander he needs to put on some evidence to that effect.

Posted by: tmm | Jun 21, 2013 2:07:32 PM

"the system would probably be more legitimate-- and might even be more accurate-- if defendants testified more. The current incentives are rigged to discourage defendants from testifying-- even defendants who have something they'd like to say"

My thought is that the system would be more legitimate if incentives existed such that the percentage of criminal charges that are actually resolved at trial were flipped. The amount of intellectual resources brought to bear on any constitutional or otherwise rule about what is said in court seems to me largely a waste of time. "ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." Missouri v Frye, 132 S.Ct. 1399, 1407 (2012). The "right" to a jury trial is a vestigial landmark from a bygone era. Focusing on how to improve the fairness and reliability of criminal trials is the very model of counting the angels on the head of a pin.

That said, Prof. Baude responded to my reaction with the quite right thought that this would still have some bearing on the plea bargaining process. The fact that we do not sufficiently fund the criminal justice system and, instead, provide huge incentives to plea sacrifices the ideal of justice flowing from a fountainhead of an adversarial process.

Posted by: will coy-geeslin | Jun 22, 2013 4:53:04 PM

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