380 U.S. 609 (1965), argued 9 Mar. 1965, decided 28 Apr. 1965 by vote of 7 to 2; Douglas for the Court, Stewart and White in dissent. The Fifth Amendment's privilege against self-incrimination, which binds the federal government, applies equally to the states through the Due Process Clause of the Fourteenth Amendment. The issue in this case was whether a state violates this privilege when it allows prosecutors and judges to comment adversely on a defendant's failure to testify in a criminal proceeding. In holding that it does, the Supreme Court said that such a practice makes the defendant pay a price for refusing to speak. He pays a price for his silence because the comments of the prosecutor or judge invite jurors to disregard the presumption of innocence to which he is constitutionally entitled. Even an innocent or honest person may have many reasons—timidity is one of them—for not taking the witness stand in his own defense. Needless to say, however, the privilege protects the guilty as well.
Allowing judges or jurors to draw inferences of guilt from the silence of the accused, remarked the Court, is a remnant of the inquisitorial system of criminal justice. Because the American system is accusatorial, the Fifth and Fourteenth Amendments must be construed to forbid comment on the defendant's failure to testify by either the prosecutor or the court. There is of course no way of keeping a jury from drawing an adverse inference from silence even in the absence of such commentary. But as the Court said, “[w]hat it may infer when the court solemnizes the silence of the accused into evidence against him is quite another [matter]” (p. 614). Griffin overruled Adamson v. California (1947).
Donald P. Kommers