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

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.

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