Griffin v. California

The Supreme Court agreed to hear the case to decide if comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment. The Supreme Court had ruled in Malloy v. Hogan (1964) that this clause was applicable to the states by reason of the Fourteenth Amendment. Malloy v. Hogan was decided after the Supreme Court of California had affirmed Griffin's conviction.

Justice Douglas, in his opinion for the majority stated that the "comment rule" violated the Fifth Amendment. He noted that the comment rule is a rule of evidence that allowed the state the privilege of offering to the jury for its consideration the failure of the accused to testify. The prosecutor's comments and the court's acquiescence are the equivalent of an offer of evidence and its acceptance. In Wilson v. United States (1893), the Court stated "the failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him."

Commenting on the refusal to testify is a remnant of the inquisitorial system of criminal justice, which the Fifth Amendment outlawed. Such commenting is "a penalty imposed by court for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly . . . .What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another." Justice Douglas summed up by stating that the Fifth Amendment forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.

Justice Harlan concurred "with great reluctance." He felt that the decision exemplified the "creeping paralysis with which this Court's recent adoption of the `incorporation' doctrine is infecting the operation of the federal system." Justice Harlan noted that Malloy v. Hogan put forth the argument that "It would be incongruous to have different standards determine the validity of a claim of privilege . . . , depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." Justice Harlan responded to this statement in Malloy, incongruity within the limits of fundamental fairness is at the heart of the federal system. The powers and responsibilities of the state and federal governments are not congruent and the Constitution did not intend them to be. Justice Harlan suggested that the way to eliminate friction between the state and federal systems is to attempt a working harmony, not for the federal system to override the states altogether.