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Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence


Jeffrey Bellin


William & Mary Law School

June 19, 2009

Ohio State Law Journal, Vol. 71, p. 229, 2010

Abstract:     
Griffin v. California holds that the Fifth Amendment privilege against compelled self-incrimination prohibits a prosecutor from arguing that a defendant’s failure to testify supports an inference of guilt. In the four decades since Griffin was decided, Griffin’s doctrinal underpinnings have been strongly criticized by prominent jurists and commentators, and even Griffin’s contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.

In light of these largely unanswered criticisms, this Article posits that the current Fifth Amendment-based prohibition of adverse comment is untenable and must be recast in a more narrowly tailored form. Relying on a fairness rationale implicit in existing case law, this Article constructs a limited Fifth Amendment prohibition of adverse comment on defendant trial silence and suggests a mechanism by which this tailored constitutional prohibition could be implemented.

Number of Pages in PDF File: 58

Keywords: Griffin, Adverse Comment, Fifth Amendment, self-incrimination, Griffin v. California

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Date posted: June 20, 2009 ; Last revised: September 2, 2010

Suggested Citation

Bellin, Jeffrey, Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence (June 19, 2009). Ohio State Law Journal, Vol. 71, p. 229, 2010. Available at SSRN: http://ssrn.com/abstract=1422824

Contact Information

Jeffrey Bellin (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
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