This Article will begin with an examination of the historic (and present) purposes underlying the fifth amendment privilege against self-incrimination, upon which any justification of the no-comment rule must ultimately rest. It will explore the danger that these purposes may be thwarted not only when defendants are actually compelled to be witnesses against themselves, but also when significant burdens are placed on defendants who choose not to testify. In Griffin, the Court reasoned that comment on the defendant's silence amounted to such an impermissible burden. But the Court failed to examine the weight of this burden. This failure makes Griffin an aberration, since the Court permits imposition of other burdens on defendants' privilege to remain silent that are as great or greater than the burden imposed in Griffin.
Finally, as an alternative justification for Griffin, this Article will re-examine one major purpose of the privilege against self-incrimination: the preservation of a proper relation between government and the individual by prohibiting the government from enlisting a defendant's involuntary efforts to build a case against him. Griffin may seem superficially consistent with this fairness justification since it prohibits use of the defendant's silence by the prosecution. It will be shown, however, that the privilege against self-incrimination has never been, nor realistically ever could be, given the full scope which the fairness justification implies, and that in view of existing case law, the Griffin rule cannot therefore be justified as preventing violations of the fifth amendment.
Donald B. Ayer,
The Fifth Amendment and the Inference of Guilt from Silence: Griffin v. California After Fifteen Years,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol78/iss6/2