Griffin v. California

Justice Stewart wrote the dissent. He stated that the question in this case was whether Griffin had been "compelled . . . to be a witness against himself." Justice Stewart felt that compulsion was the key here. "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." Justice Stewart, referring to the majority's opinion, did not understand what penalty was imposed here.

Justice Stewart did not feel that the defendant would be at more of a disadvantage under the California comment rule than in a court where no comment on a suspect's failure to take the witness stand was allowed. The inferences drawn by the jury under the limiting and carefully controlling language of instruction might be less detrimental than 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."

A prosecutor will seek to encourage the drawing of inferences unfavorable to the defendant, but the defendant's counsel has an equal opportunity to explain why a defendant may not wish to take the stand. 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 rule protects the defendant against unwarranted inferences that an uninformed jury might draw. It also attempts to recognize and articulate what the state believes to the natural probative force of certain facts.

Justice Stewart stated that the formulation of procedural rules governing the administration of criminal justice in the states should be a matter of local concern; the Supreme Court's function is to prevent violations of the Constitution. California has not compelled anyone to be a witness against himself. Whenever a defendant in a criminal trial exercises this constitutional right, the jury is bound to draw inferences. "No constitution can prevent the operation of the human mind. Without limiting instruction, the danger exists that the inferences drawn by the jury may be unfairly broad."