MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was convicted of murder in the first degree after a jury trial in a California court. He did not testify at the trial on the issue of guilt, though he did testify at the separate trial
It added, however, that no such inference could be drawn as to evidence respecting which he had no knowledge. It stated that failure of a defendant to deny or explain the evidence of which he had knowledge does not create a presumption of guilt nor by itself warrant an inference of guilt nor relieve the prosecution of any of its burden of proof.
Petitioner had been seen with the deceased the evening of her death, the evidence placing him with her in the alley where her body was found. The prosecutor made much of the failure of petitioner to testify:
The death penalty was imposed and the California Supreme Court affirmed. 60 Cal.2d 182, 383 P.2d 432. The case is here on a writ of certiorari which we granted, 377 U.S. 989, to consider 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, 378 U.S. 1, decided after the Supreme Court of California had affirmed the present conviction.
We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance. The Court in the Wilson case stated:
If the words "Fifth Amendment" are substituted for "act" and for "statute," the spirit of the Self-Incrimination
We said in Malloy v. Hogan, supra, p. 11, that "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." We take that in its literal sense and hold that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.
THE CHIEF JUSTICE took no part in the decision of this case.
MR. JUSTICE HARLAN, concurring.
I agree 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, a right accorded him by that amendment. And given last Term's decision in Malloy v. Hogan, 378 U.S. 1, that the Fifth Amendment applies
While I would agree that the accusatorial rather than inquisitorial process is a fundamental part of the "liberty" guaranteed by the Fourteenth Amendment, my Brother STEWART in dissent, post, p. 617, fully demonstrates that the no-comment rule "might be lost, and justice still be done," Palko v. Connecticut, 302 U.S. 319, 325. As a "non-fundamental" part of the Fifth Amendment (cf. my opinion concurring in the result in Pointer, at 409), I would not, but for Malloy, apply the no-comment rule to the States.
Malloy put forward a single argument for applying the Fifth Amendment, as such, to the States:
My answer then (378 U. S., at 27) and now is that "incongruity," within the limits of fundamental fairness, is at the heart of our federal system. The powers and responsibilities of the State and Federal Governments are not congruent, and under the Constitution they are not intended to be.
It has also recently been suggested that measuring state procedures against standards of fundamental fairness as reflected in such landmark decisions as Twining v. New
Although compelled to concur in this decision, I am free to express the hope that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, dissenting.
The petitioner chose not to take the witness stand at his trial upon a charge of first-degree murder in a California court. Article I, § 13, of the California Constitution establishes a defendant's privilege against self-incrimination and further provides:
In conformity with this provision, the prosecutor in his argument to the jury emphasized that a person accused of crime in a public forum would ordinarily deny or explain the evidence against him if he truthfully could do so.
The jury found the petitioner guilty as charged, and his conviction was affirmed by the Supreme Court of California.
With both candor and accuracy, the Court concedes that the question before us is one of first impression here.
We must determine whether the petitioner has been "compelled . . . to be a witness against himself." Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. When a suspect was brought before the Court of High Commission or the Star Chamber, he was commanded to answer whatever was asked of him, and subjected to a far-reaching and deeply probing inquiry in an effort to ferret out some unknown and frequently unsuspected crime. He declined to answer on pain of incarceration, banishment, or mutilation. And if he spoke falsely, he was subject to further punishment. Faced with this formidable array of alternatives, his decision to speak was unquestionably coerced.
Those were the lurid realities which lay behind enactment of the Fifth Amendment, a far cry from the subject matter of the case before us. I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. In support of its conclusion that the California procedure does compel the accused to testify, the Court has only this to say: "It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Exactly what the penalty
It is not at all apparent to me, on any realistic view of the trial process, that a defendant will be at more of a disadvantage under the California practice than he would be in a court which permitted no comment at all on his failure to take the witness stand. How can it be said that the inferences drawn by a jury will be more detrimental to a defendant under the limiting and carefully controlling language of the instruction here involved than would result if the jury were left to roam at large with only its untutored instincts to guide it, to draw from the defendant's silence broad inferences of guilt? The instructions in this case expressly cautioned the jury that the defendant's failure to testify "does not create a presumption of guilt or by itself warrant an inference of guilt"; it was further admonished that such failure does not "relieve the prosecution of its burden of proving every essential element of the crime," and finally the trial judge warned that the prosecution's burden remained that of proof "beyond a reasonable doubt." Whether the same limitations would be observed by a jury without the benefit of protective instructions shielding the defendant is certainly open to real doubt.
Moreover, no one can say where the balance of advantage might lie as a result of the attorneys' discussion of the matter. No doubt the prosecution's argument will seek to encourage the drawing of inferences unfavorable to the
I think the California comment rule is not a coercive device which impairs the right against self-incrimination, but rather a means of articulating and bringing into the light of rational discussion a fact inescapably impressed on the jury's consciousness. 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. Surely no one would deny that the State has an important interest in throwing the light of rational discussion on that which transpires in the course of a trial, both to protect the defendant from the very real dangers of silence and to shape a legal process designed to ascertain the truth.
The California rule allowing comment by counsel and instruction by the judge on the defendant's failure to take the stand is hardly an idiosyncratic aberration. The Model Code of Evidence, and the Uniform Rules of Evidence both sanction the use of such procedures.
I would affirm the judgment.
". . . in 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."
"In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him." June 25, 1948, c. 645, 62 Stat. 833.
The legislative history shows that 18 U. S. C. § 3481 was designed, inter alia, to bar counsel for the prosecution from commenting on the defendant's refusal to testify. Mr. Frye of Maine, spokesman for the bill, said, "That is the law of Massachusetts, and we propose to adopt it as a law of the United States." 7 Cong. Rec. 385. The reference was to Mass. Stat. 1866, c. 260, now Mass. Gen. Laws Ann., c. 233, § 20, cl. Third (1959), which is almost identical with 18 U. S. C. § 3481. See also Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Scott, 123 Mass. 239; Opinion of the Justices, 300 Mass. 620, 15 N.E.2d 662.