OCTOBER TERM, 1998
Syllabus
MITCHELL
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 97-7541. Argued December 9, 1998-Decided April 5, 1999
Petitioner pleaded guilty to federal charges of conspiring to
distribute five or more kilograms of cocaine and of distributing
cocaine, but reserved the right to contest at sentencing the drug
quantity attributable under the conspiracy count. Before accepting
her plea, the District Court made the inquiries required by Federal
Rule of Criminal Procedure 11; told petitioner that she faced a
mandatory minimum of 1 year in prison for distributing cocaine, but
a lO-year minimum for conspiracy if the Government could show the
required five kilograms; and explained that by pleading guilty she
would be waiving,
inter alia, her right "at trial to remain
silent." Indicating that she had done "some of" the proffered
conduct, petitioner confirmed her guilty plea. At her sentencing
hearing, three codefendants testified that she had sold 1 Y2 to 2
ounces of cocaine twice a week for 1 Y2 years, and another person
testified that petitioner had sold her two ounces of cocaine.
Petitioner put on no evidence and argued that the only reliable
evidence showed that she had sold only two ounces of cocaine. The
District Court ruled that as a consequence of petitioner's guilty
plea, she had no right to remain silent about her crime's details;
found that the codefendants' testimony put her over the 5-kilogram
threshold, thus mandating the lO-year minimum; and noted that her
failure to testify was a factor in persuading the court to rely on
the codefendants' testimony. The Third Circuit affirmed.
Held:
1. In the federal criminal system, a guilty plea does not waive
the self-incrimination privilege at sentencing. Pp. 321-327.
(a) The well-established rule that a witness, in a single
proceeding, may not testify voluntarily about a subject and then
invoke the privilege against self-incrimination when questioned
about the details is justified by the fact that a witness may not
pick and choose what aspects of a particular subject to discuss
without casting doubt on the statements' trustworthiness and
diminishing the factual inquiry's integrity. The privilege is
waived for matters to which the witness testifies, and the waiver's
scope is determined by the scope of relevant cross-examination.
Brown v.
United States, 356 U. S. 148, 154. The
concerns justifying cross-examination at trial are absent at a plea
colloquy, which protects
315
the defendant from an unintelligent or involuntary plea. There
is no convincing reason why the narrow inquiry at this stage should
entail an extensive waiver of the privilege. A defendant who takes
the stand cannot reasonably claim immunity on the matter he has
himself put in dispute, but the defendant who pleads guilty takes
matters out of dispute, leaving little danger that the court will
be misled by selective disclosure. Here, petitioner's "some of"
statement did not pose a threat to the factfinding proceeding's
integrity, for the purpose of the District Court's inquiry was
simply to ensure that she understood the charges and there was a
factual basis for the Government's case. Nor does Rule 11
contemplate a broad waiver. Its purpose is to inform the defendant
of what she loses by forgoing a trial, not to elicit a waiver of
privileges that exist beyond the trial's confines. Treating a
guilty plea as a waiver of the privilege would be a grave
encroachment on defendants' rights. It would allow prosecutors to
indict without specifying a drug quantity, obtain a guilty plea,
and then put the defendant on the stand at sentencing to fill in
the quantity. To enlist a defendant as an instrument of his or her
own condemnation would undermine the long tradition and vital
principle that criminal proceedings rely on accusations proved by
the Government, not on inquisitions conducted to enhance its own
prosecutorial power.
Rogers v.
Richmond, 365 U. S. 534, 541. Pp.
321-325.
(b) Where a sentence has yet to be imposed, this Court has
already rejected the proposition that incrimination is complete
once guilt has been adjudicated. See
Estelle v.
Smith, 451 U.
S. 454, 462. That proposition applies only to cases in which
the sentence has been fixed and the judgment of conviction has
become final. See,
e. g., Reina v.
United States,
364 U. S. 507,
513. Before sentencing a defendant may have a legitimate fear of
adverse consequences from further testimony, and any effort to
compel that testimony at sentencing "clearly would contravene the
Fifth Amendment,"
Estelle, supra, at 463.
Estelle was
a capital case, but there is no reason not to apply its principle
to noncapital sentencing hearings. The Fifth Amendment prevents a
person from being compelled in any criminal case to be a witness
against himself. To maintain that sentencing proceedings are not
part of "any criminal case" is contrary to the Federal Rules of
Criminal Procedure and to common sense. Pp. 325-327.
2. A sentencing court may not draw an adverse inference from a
defendant's silence in determining facts relating to the
circumstances and details of the crime. The normal rule in a
criminal case permits no negative inference from a defendant's
failure to testify. See
Griffin v.
California,
380 U. S. 609,
614. A sentencing hearing is part of the criminal case, and the
concerns mandating the rule against negative inferences at trial
apply with equal force at sentencing. This holding
316
is a product not only of
Griffin but also of
Estelle's conclusion that there is no basis for
distinguishing between a criminal case's guilt and sentencing
phases so far as the protection of the Fifth Amendment privilege is
concerned. There is little doubt that the rule against adverse
inferences has become an essential feature of the Nation's legal
tradition, teaching that the Government must prove its allegations
while respecting the defendant's individual rights. The Court
expresses no opinion on the questions whether silence bears upon
the determination of lack of remorse, or upon acceptance of
responsibility for the offense for purposes of a downward
adjustment under the United States Sentencing Guidelines. Pp.
327-330.
122 F.3d
185, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR
and THOMAS, JJ., joined,
post, p. 331. THOMAS, J., filed a
dissenting opinion,
post, p. 341.
Steven A. Morley, by appointment of the Court, 525 U. S.
806, argued the cause for petitioner. With him on the briefs was
Jeffrey T. Green.
Deputy Solicitor General Dreeben argued the cause for the United
States. With him on the brief were Solicitor General Waxman,
Assistant Attorney General Robinson, Barbara McDowell, and Joel M.
Gershowitz. *
JUSTICE KENNEDY delivered the opinion of the Court. Two
questions relating to a criminal defendant's Fifth Amendment
privilege against self-incrimination are presented to us. The first
is whether, in the federal criminal system, a guilty plea waives
the privilege in the sentencing phase of the case, either as a
result of the colloquy preceding the plea or by operation of law
when the plea is entered. We hold the plea is not a waiver of the
privilege at sentencing. The second question is whether, in
determining facts
*Peter Goldberger, Lisa Bondareff Kemler, and
Kyle
O'Dowd filed a brief for the National Association of Criminal
Defense Lawyers et al. as
amici curiae urging reversal.
317
about the crime which bear upon the severity of the sentence, a
trial court may draw an adverse inference from the defendant's
silence. We hold a sentencing court may not draw the adverse
inference.
I
Petitioner Amanda Mitchell and 22 other defendants were indicted
for offenses arising from a conspiracy to distribute cocaine in
Allentown, Pennsylvania, from 1989 to 1994. According to the
indictment, the leader of the conspiracy, Harry Riddick, obtained
large quantities of cocaine and resold the drug through couriers
and street sellers, including petitioner. Petitioner was charged
with one count of conspiring to distribute five or more kilograms
of cocaine, in violation of 21 U. S. C. § 846, and with three
counts of distributing cocaine within 1,000 feet of a school or
playground, in violation of § 860(a). In 1995, without any plea
agreement, petitioner pleaded guilty to all four counts. She
reserved the right to contest the drug quantity attributable to her
under the conspiracy count, and the District Court advised her the
drug quantity would be determined at her sentencing hearing.
Before accepting the plea, the District Court made the inquiries
required by Rule 11 of the Federal Rules of Criminal Procedure.
Informing petitioner of the penalties for her offenses, the
District Judge advised her, "the range of punishment here is very
complex because we don't know how much cocaine the Government's
going to be able to show you were involved in." App. 39. The judge
told petitioner she faced a mandatory minimum of one year in prison
under § 860 for distributing cocaine near a school or playground.
She also faced "serious punishment depending on the quantity
involved" for the conspiracy, with a mandatory minimum of 10 years
in prison under § 841 if she could be held responsible for at least
5 kilograms but less than 15 kilograms of cocaine.
I d., at
42. By pleading guilty, the District Court explained,
318
petitioner would waive various rights, including "the right at
trial to remain silent under the Fifth Amendment."
Id., at
45.
After the Government explained the factual basis for the
charges, the judge, having put petitioner under oath, asked her,
"Did you do that?" Petitioner answered, "Some of it."
Id.,
at 47. She indicated that, although present for one of the
transactions charged as a substantive cocaine distribution count,
she had not herself delivered the cocaine to the customer. The
Government maintained she was liable nevertheless as an aider and
abettor of the delivery by another courier. After discussion with
her counsel, petitioner reaffirmed her intention to plead guilty to
all the charges. The District Court noted she might have a defense
to one count on the theory that she was present but did not aid or
abet the transaction. Petitioner again confirmed her intention to
plead guilty, and the District Court accepted the plea.
In 1996, 9 of petitioner's original 22 codefendants went to
trial. Three other codefendants had pleaded guilty and agreed to
cooperate with the Government. They testified petitioner was a
regular seller for ringleader Riddick. At petitioner's sentencing
hearing, the three adopted their trial testimony, and one of them
furnished additional information on the amount of cocaine
petitioner sold. According to him, petitioner worked two to three
times a week, selling 1% to 2 ounces of cocaine a day, from April
1992 to August 1992. Then, from August 1992 to December 1993 she
worked three to five times a week, and from January 1994 to March
1994 she was one of those in charge of cocaine distribution for
Riddick. On cross-examination, the codefendant conceded he had not
seen petitioner on a regular basis during the relevant period.
Both petitioner and the Government referred to trial testimony
by one Alvitta Mack, who had made a series of drug buys under the
supervision of law enforcement agents, including three purchases
from petitioner totaling two ounces
319
of cocaine in 1992. Petitioner put on no evidence at sentencing,
nor did she testify to rebut the Government's evidence about drug
quantity. Her counsel argued, however, that the three documented
sales to Mack constituted the only evidence of sufficient
reliability to be credited in determining the quantity of cocaine
attributable to her for sentencing purposes.
After this testimony at the sentencing hearing the District
Court ruled that, as a consequence of her guilty plea, petitioner
had no right to remain silent with respect to the details of her
crimes. The court found credible the testimony indicating
petitioner had been a drug courier on a regular basis. Sales of llh
to 2 ounces twice a week for a year and a half put her over the
5-kilogram threshold, thus mandating a minimum sentence of 10
years. "One of the things" persuading the court to rely on the
testimony of the codefendants was petitioner's "not testifying to
the contrary."
Id., at 95.
The District Judge told petitioner:
"'I held it against you that you didn't come forward today and
tell me that you really only did this a couple of times .... I'm
taking the position that you should come forward and explain your
side of this issue.
"'Your counsel's taking the position that you have a Fifth
Amendment right not to .... If he's-if it's determined by a higher
Court that he's right in that regard, I would be willing to bring
you back for resentencing. And if you-if-and then I might take a
closer look at the [codefendants'] testimony.'" Id., at
98-99.
The District Court sentenced petitioner to the statutory minimum
of 10 years of imprisonment, 6 years of supervised release, and a
special assessment of $200.
The Court of Appeals for the Third Circuit affirmed the
sentence.
122 F.3d
185 (1997). According to the Court of Appeals: "By voluntarily
and knowingly pleading guilty to
320
the offense Mitchell waived her Fifth Amendment privilege."
Id., at 189. The court acknowledged other Circuits have held
a witness can "claim the Fifth Amendment privilege if his or her
testimony might be used to enhance his or her sentence,"
id., at 190 (citing
United States v.
Garcia,
78 F.3d
1457, 1463, and n. 8 (CAlO), cert. denied, 517 U. S. 1239
(1996)), but it said this rule "does not withstand analysis," 122
F. 3d, at 191. The court thought it would be illogical to "fragment
the sentencing process," retaining the privilege against
self-incrimination as to one or more components of the crime while
waiving it as to others.
Ibid. Petitioner's reservation of
the right to contest the amount of drugs attributable to her did
not change the court's analysis. In the Court of Appeals' view:
"Mitchell opened herself up to the full range of possible
sentences for distributing cocaine when she was told during her
plea colloquy that the penalty for conspiring to distribute cocaine
had a maximum of life imprisonment. While her reservation may have
put the government to its proof as to the amount of drugs, her
declination to testify on that issue could properly be held against
her." Ibid.
The court acknowledged a defendant may plead guilty and retain
the privilege with respect to other crimes, but it observed:
"Mitchell does not claim that she could be implicated in other
crimes by testifying at her sentencing hearing, nor could she be
retried by the state for the same offense."
Ibid. (citing 18
Pa. Cons. Stat. § 111 (1998), a statute that bars, with certain
exceptions, a state prosecution following a federal conviction
based on the same conduct).
Judge Michel concurred, reasoning that any error by the District
Court in drawing an adverse factual inference from petitioner's
silence was harmless because "the evidence amply supported [the
judge's] finding on quantity" even with-
321
out consideration of petitioner's failure to testify. 122 F. 3d,
at 192.
Other Circuits to have confronted the issue have held that a
defendant retains the privilege at sentencing. See,
e. g.,
United States v.
Kuku, 129 F.3d
1435, 1437-1438 (CAll 1997);
United States v.
Garcia, 78 F.3d
1457, 1463 (CAlO 1996);
United States v.
De La
Cruz, 996 F.2d
1307, 1312-1313 (CAl1993);
United States v.
Hernandez, 962 F.2d
1152, 1161
(CA5 1992);
Bank One of Cleveland, N.
A. v.
Abbe, 916 F.2d
1067, 1075-1076 (CA6 1990);
United States v.
Lugg, 892 F.2d
101, 102-103 (CADC 1989);
United States v.
Paris,
827 F.2d
395, 398-399 (CA9 1987). We granted certiorari to resolve the
apparent Circuit conflict created by the Court of Appeals'
decision, 524 U. S. 925 (1998), and we now reverse.
II
The Government maintains that petitioner's guilty plea was a
waiver of the privilege against compelled selfincrimination with
respect to all the crimes comprehended in the plea. We hold
otherwise and rule that petitioner retained the privilege at her
sentencing hearing.
A
It is well established that a witness, in a single proceeding,
may not testify voluntarily about a subject and then invoke the
privilege against self-incrimination when questioned about the
details. See
Rogers v.
United States, 340 U. S. 367, 373
(1951). The privilege is waived for the matters to which the
witness testifies, and the scope of the "waiver is determined by
the scope of relevant cross-examination,"
Brown v.
United
States, 356 U. S.
148, 154-155 (1958). "The witness himself, certainly if he is a
party, determines the area of disclosure and therefore of inquiry,"
id., at 155. Nice questions will arise, of course, about the extent
of the initial testimony and whether the ensuing questions are
compre-
322
hended within its scope, but for now it suffices to note the
general rule.
The justifications for the rule of waiver in the testimonial
context are evident: A witness may not pick and choose what aspects
of a particular subject to discuss without casting doubt on the
trustworthiness of the statements and diminishing the integrity of
the factual inquiry. As noted in Rog
ers, a contrary rule
"would open the way to distortion of facts by permitting a witness
to select any stopping place in the testimony," 340 U. S., at 371.
It would, as we said in
Brown, "make of the Fifth Amendment
not only a humane safeguard against judicially coerced
self-disclosure but a positive invitation to mutilate the truth a
party offers to tell," 356 U. S., at 156. The illogic of allowing a
witness to offer only self-selected testimony should be obvious
even to the witness, so there is no unfairness in allowing
crossexamination when testimony is given without invoking the
privilege.
We may assume for purposes of this opinion, then, that if
petitioner had pleaded not guilty and, having taken the stand at a
trial, testified she did "some of it," she could have been
cross-examined on the frequency of her drug deliveries and the
quantity of cocaine involved. The concerns which justify the
cross-examination when the defendant testifies are absent at a plea
colloquy, however. The purpose of a plea colloquy is to protect the
defendant from an unintelligent or involuntary plea. The Government
would turn this constitutional shield into a prosecutorial sword by
having the defendant relinquish all rights against compelled
selfincrimination upon entry of a guilty plea, including the right
to remain silent at sentencing.
There is no convincing reason why the narrow inquiry at the plea
colloquy should entail such an extensive waiver of the privilege.
Unlike the defendant taking the stand, who "cannot reasonably claim
that the Fifth Amendment gives him ... an immunity from
cross-examination on the matters
323
he has himself put in dispute," id., at 155-156, the defendant
who pleads guilty puts nothing in dispute regarding the essentials
of the offense. Rather, the defendant takes those matters out of
dispute, often by making a joint statement with the prosecution or
confirming the prosecution's version of the facts. Under these
circumstances, there is little danger that the court will be misled
by selective disclosure. In this respect a guilty plea is more like
an offer to stipulate than a decision to take the stand. Here,
petitioner's statement that she had done "some of" the proffered
conduct did not pose a threat to the integrity of factfinding
proceedings, for the purpose of the District Court's inquiry was
simply to ensure that petitioner understood the charges and that
there was a factual basis for the Government's case.
Nor does Federal Rule of Criminal Procedure 11, which governs
pleas, contemplate the broad waiver the Government envisions. Rule
11 directs the district court, before accepting a guilty plea, to
ascertain the defendant understands he or she is giving up "the
right to be tried by a jury and at that trial ... the right against
compelled selfincrimination." Rule 11(c)(3). The transcript of the
plea colloquy in this case discloses that the District Court took
care to comply with this and the other provisions of Rule 11. The
District Court correctly instructed petitioner: "You have the right
at trial to remain silent under the Fifth Amendment, or at your
option, you can take the stand and tell the jury your side of this
controversy .... If you plead guilty, all of those rights are
gone." App. 45.
Neither the Rule itself nor the District Court's explication of
it indicates that the defendant consents to take the stand in the
sentencing phase or to suffer adverse consequences from declining
to do so. Both the Rule and the District Court's admonition were to
the effect that by entry of the plea petitioner would surrender the
right "at trial" to invoke the privilege. As there was to be no
trial, the warning would not have brought home to petitioner that
she was also
324
waiving the right to self-incrimination at sentencing. The
purpose of Rule 11 is to inform the defendant of what she loses by
forgoing the trial, not to elicit a waiver of the privilege for
proceedings still to follow. A waiver of a right to trial with its
attendant privileges is not a waiver of the privileges which exist
beyond the confines of the trial.
Of course, a court may discharge its duty of ensuring a factual
basis for a plea by "question[ing] the defendant under oath, on the
record, and in the presence of counsel about the offense to which
the defendant has pleaded." Rule 11(c)(5). We do not question the
authority of a district court to make whatever inquiry it deems
necessary in its sound discretion to assure itself the defendant is
not being pressured to offer a plea for which there is no factual
basis. A defendant who withholds information by invoking the
privilege against self-incrimination at a plea colloquy runs the
risk the district court will find the factual basis inadequate. At
least once the plea has been accepted, statements or admissions
made during the preceding plea colloquy are later admissible
against the defendant, as is the plea itself. A statement
admissible against a defendant, however, is not necessarily a
waiver of the privilege against self-incrimination. Rule 11 does
not prevent the defendant from relying upon the privilege at
sentencing.
Treating a guilty plea as a waiver of the privilege at
sentencing would be a grave encroachment on the rights of
defendants. At oral argument, we asked counsel for the United
States whether, on the facts of this case, if the Government had no
reliable evidence of the amount of drugs involved, the prosecutor
"could say, well, we can't prove it, but we'd like to put her on
the stand and cross-examine her and see if we can't get her to
admit it." Tr. of Oral Arg. 45. Counsel answered: "[T]he waiver
analysis that we have put forward suggests that at least as to the
facts surrounding the conspiracy to which she admitted, the
Government could do that."
Ibid. Over 90% of federal
criminal defendants
325
whose cases are not dismissed enter pleas of guilty or
nolo
contendere. U. S. Dept. of Justice, Bureau of Justice
Statistics, Sourcebook of Criminal Justice Statistics 1996, p. 448
(24th ed. 1997). Were we to accept the Government's position,
prosecutors could indict without specifying the quantity of drugs
involved, obtain a guilty plea, and then put the defendant on the
stand at sentencing to fill in the drug quantity. The result would
be to enlist the defendant as an instrument in his or her own
condemnation, undermining the long tradition and vital principle
that criminal proceedings rely on accusations proved by the
Government, not on inquisitions conducted to enhance its own
prosecutorial power.
Rogers v.
Richmond, 365 U. S. 534, 541 (1961)
("[O]urs is an accusatorial and not an inquisitorial system").
We reject the position that either petitioner's guilty plea or
her statements at the plea colloquy functioned as a waiver of her
right to remain silent at sentencing.
B
The centerpiece of the Third Circuit's opinion is the idea that
the entry of the guilty plea completes the incrimination of the
defendant, thus extinguishing the privilege. Where a sentence has
yet to be imposed, however, this Court has already rejected the
proposition that" 'incrimination is complete once guilt has been
adjudicated,'"
Estelle v.
Smith, 451 U. S. 454, 462
(1981), and we reject it again today.
The Court of Appeals cited Wigmore on Evidence for the
proposition that upon conviction "'criminality ceases; and with
criminality the privilege.'" 122 F. 3d, at 191 (citing 8 J.
Wigmore, Evidence § 2279, p. 481 (J. McNaughton rev. 1961)). The
passage relied upon does not support the Third Circuit's narrow
view of the privilege. The full passage is as follows: "Legal
criminality consists in liability to the law's punishment. When
that liability is removed, criminality ceases; and with the
criminality the privilege."
Ibid. It could be argued that
liability for punishment continues until
326
sentence has been imposed, and so does the privilege. Even if
the Court of Appeals' interpretation of the treatise were correct,
however, and it means the privilege ceases upon conviction but
before sentencing, we would respond that the suggested rule is
simply wrong. A later supplement to the treatise, indeed, states
the proper rule that, "[a]lthough the witness has pleaded guilty to
a crime charged but has not been sentenced, his constitutional
privilege remains unimpaired." J. Wigmore, Evidence § 2279, p. 991,
n. 1 (A. Best ed. Supp. 1998).
It is true, as a general rule, that where there can be no
further incrimination, there is no basis for the assertion of the
privilege. We conclude that principle applies to cases in which the
sentence has been fixed and the judgment of conviction has become
final. See,
e. g., Reina v.
United States, 364 U. S. 507, 513
(1960). If no adverse consequences can be visited upon the
convicted person by reason of further testimony, then there is no
further incrimination to be feared.
Where the sentence has not yet been imposed a defendant may have
a legitimate fear of adverse consequences from further testimony.
As the Court stated in
Estelle: "Any effort by the State to
compel [the defendant] to testify against his will at the
sentencing hearing clearly would contravene the Fifth Amendment."
451 U. S., at 463.
Estelle was a capital case, but we find
no reason not to apply the principle to noncapital sentencing
hearings as well. "The essence of this basic constitutional
principle is 'the requirement that the State which proposes to
convict
and punish an individual produce the evidence
against him by the independent labor of its officers, not by the
simple, cruel expedient of forcing it from his own lips.'"
Id., at 462 (emphasis in original) (quoting
Culombe
v.
Connecticut, 367 U. S. 568, 581-582
(1961)). The Government itself makes the implicit concession that
the acceptance of a guilty plea does not eliminate the possibility
of further incrimination. In its brief to the Court, the Gov-
327
ernment acknowledges that a defendant who awaits sentencing
after having pleaded guilty may assert the privilege against
self-incrimination if called as a witness in the trial of a
codefendant, in part because of the danger of responding "to
questions that might have an adverse impact on his sentence or on
his prosecution for other crimes." Brief for United States 31.
The Fifth Amendment by its terms prevents a person from being
"compelled in any criminal case to be a witness against himself."
U. S. Const., Arndt. 5. To maintain that sentencing proceedings are
not part of "any criminal case" is contrary to the law and to
common sense. As to the law, under the Federal Rules of Criminal
Procedure, a court must impose sentence before a judgment of
conviction can issue. See Rule 32(d)(1) ("A judgment of conviction
must set forth the plea ... and the sentence"); cf. Mempa v. Rhay,
389 U. S. 128,
134 (1967). As to common sense, it appears that in this case, as is
often true in the criminal justice system, the defendant was less
concerned with the proof of her guilt or innocence than with the
severity of her punishment. Petitioner faced imprisonment from one
year upwards to life, depending on the circumstances of the crime.
To say that she had no right to remain silent but instead could be
compelled to cooperate in the deprivation of her liberty would
ignore the Fifth Amendment privilege at the precise stage where,
from her point of view, it was most important. Our rule is
applicable whether or not the sentencing hearing is deemed a
proceeding separate from the Rule 11 hearing, an issue we need not
resolve.
III
The Government suggests in a footnote that even if petitioner
retained an unwaived privilege against selfincrimination in the
sentencing phase of her case, the District Court was entitled,
based on her silence, to draw an adverse inference with regard to
the amount of drugs attributable to her. Brief for United States
31-32, n. 18. The
328
normal rule in a criminal case is that no negative inference
from the defendant's failure to testify is permitted.
Griffin v.
California, 380 U. S. 609, 614
(1965). We decline to adopt an exception for the sentencing phase
of a criminal case with regard to factual determinations respecting
the circumstances and details of the crime.
This Court has recognized "the prevailing rule that the Fifth
Amendment does not forbid adverse inferences against parties to
civil actions when they refuse to testify in response to probative
evidence offered against them,"
Baxter v.
Palmigiano,
425 U. S. 308,
318 (1976), at least where refusal to waive the privilege does not
lead "automatically and without more to [the] imposition of
sanctions,"
Lefkowitz v.
Cunningham, 431 U. S. 801, 808, n. 5
(1977). In ordinary civil cases, the party confronted with the
invocation of the privilege by the opposing side has no capacity to
avoid it, say, by offering immunity from prosecution. The rule
allowing invocation of the privilege, though at the risk of
suffering an adverse inference or even a default, accommodates the
right not to be a witness against oneself while still permitting
civil litigation to proceed. Another reason for treating civil and
criminal cases differently is that "the stakes are higher" in
criminal cases, where liberty or even life may be at stake, and
where the government's "sole interest is to convict."
Baxter, 425 U. S., at 318-319.
Baxter itself involved state prison disciplinary
proceedings which, as the Court noted, "are not criminal
proceedings" and "involve the correctional process and important
state interests other than conviction for crime."
Id., at
316, 319. Cf.
Ohio Adult Parole Authority v.
Woodard,
523 U. S. 272
(1998) (adverse inference permissible from silence in clemency
proceeding, a nonjudicial postconviction process which is not part
of the criminal case). Unlike a prison disciplinary proceeding, a
sentencing hearing is part of the criminal case-the explicit
concern of the self-incrimination privilege. In accordance with the
text of the Fifth Amendment, we
329
must accord the privilege the same protection in the sentencing
phase of "any criminal case" as that which is due in the trial
phase of the same case, see
Griffin, supra.
The concerns which mandate the rule against negative inferences
at a criminal trial apply with equal force at sentencing. Without
question, the stakes are high: Here, the inference drawn by the
District Court from petitioner's silence may have resulted in
decades of added imprisonment. The Government often has a motive to
demand a severe sentence, so the central purpose of the
privilege-to protect a defendant from being the unwilling
instrument of his or her own condemnation-remains of vital
importance.
Our holding today is a product of existing precedent, not only
Griffin but also by
Estelle v.
Smith, in which
the Court could "discern no basis to distinguish between the guilt
and penalty phases of respondent's capital murder trial so far as
the protection of the Fifth Amendment privilege is concerned." 451
U. S., at 462-463. Although
Estelle was a capital case, its
reasoning applies with full force here, where the Government seeks
to use petitioner's silence to infer commission of disputed
criminal acts. See
supra, at 326. To say that an adverse
factual inference may be drawn from silence at a sentencing hearing
held to determine the specifics of the crime is to confine
Griffin by ignoring
Estelle. We are unwilling to
truncate our precedents in this way.
The rule against adverse inferences from a defendant's silence
in criminal proceedings, including sentencing, is of proven
utility. Some years ago the Court expressed concern that "[t]oo
many, even those who should be better advised, view this privilege
as a shelter for wrongdoers. They too readily assume that those who
invoke it are either guilty of crime or commit perjury in claiming
the privilege."
Ullmann v.
United States, 350 U. S. 422, 426
(1956). Later, it quoted with apparent approval Wigmore's
observation that "'[t]he layman's natural first suggestion would
probably be that the resort to privilege in each instance is a
clear confes-
330
sion of crime,'"
Lakeside v.
Oregon, 435 U. S. 333, 340, n. 10
(1978) (quoting 8 Wigmore, Evidence § 2272, at 426). It is far from
clear that citizens, and jurors, remain today so skeptical of the
principle or are often willing to ignore the prohibition against
adverse inferences from silence. Principles once unsettled can find
general and wide acceptance in the legal culture, and there can be
little doubt that the rule prohibiting an inference of guilt from a
defendant's rightful silence has become an essential feature of our
legal tradition. This process began even before
Griffin.
When
Griffin was being considered by this Court, some 44
States did not allow a prosecutor to invite the jury to make an
adverse inference from the defendant's refusal to testify at trial.
See
Griffin, supra, at 611, n. 3. The rule against adverse
inferences is a vital instrument for teaching that the question in
a criminal case is not whether the defendant committed the acts of
which he is accused. The question is whether the Government has
carried its burden to prove its allegations while respecting the
defendant's individual rights. The Government retains the burden of
proving facts relevant to the crime at the sentencing phase and
cannot enlist the defendant in this process at the expense of the
self-incrimination privilege. Whether silence bears upon the
determination of a lack of remorse, or upon acceptance of
responsibility for purposes of the downward adjustment provided in
§ 3E 1.1 of the United States Sentencing Guidelines (1998), is a
separate question. It is not before us, and we express no view on
it.
By holding petitioner's silence against her in determining the
facts of the offense at the sentencing hearing, the District Court
imposed an impermissible burden on the exercise of the
constitutional right against compelled selfincrimination. The
judgment of the Court of Appeals is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
331
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR,
and JUSTICE THOMAS join, dissenting.
I agree with the Court that Mitchell had the right to invoke her
Fifth Amendment privilege during the sentencing phase of her
criminal case. In my view, however, she did not have the right to
have the sentencer abstain from making the adverse inferences that
reasonably flow from her failure to testify. I therefore
respectfully dissent.
I
The Fifth Amendment provides that "[n]o person ... shall be
compelled in any criminal case to be a witness against himself." As
an original matter, it would seem to me that the threat of an
adverse inference does not "compel" anyone to testify. It is one of
the natural (and not governmentally imposed) consequences of
failing to testify-as is the facttinder's increased readiness to
believe the incriminating testimony that the defendant chooses not
to contradict. Both of these consequences are assuredly cons rather
than pros in the "to testify or not to testify" calculus, but they
do not
compel anyone to take the stand. Indeed, I imagine
that in most instances, a guilty defendant would choose to remain
silent
despite the adverse inference, on the theory that it
would do him less damage than his own cross-examined testimony.
Despite the text, we held in
Griffin v.
California, 380 U. S. 609, 614
(1965), that it was impermissible for the prosecutor or judge to
comment on a defendant's refusal to testify. We called it a
"penalty" imposed on the defendant's exercise of the privilege.
Ibid. And we did not stop there, holding in
Carter v.
Kentucky, 450
U. S. 288 (1981), that a judge must, if the defendant asks,
instruct the jury that it may not
sua sponte consider the
defendant's silence as evidence of his guilt.
The majority muses that the no-adverse-inference rule has found
"wide acceptance in the legal culture" and has even
332
become "an essential feature of our legal tradition."
Ante, at 330. Although the latter assertion strikes me as
hyperbolic, the former may be true-which is adequate reason not to
overrule these cases, a course I in no way propose. It is not
adequate reason, however, to extend these cases into areas where
they do not yet apply, since neither logic nor history can be
marshaled in defense of them. The illogic of the
Griffin
line is plain, for it runs exactly counter to normal evidentiary
inferences: If I ask my son whether he saw a movie I had forbidden
him to watch, and he remains silent, the import of his silence is
clear. Indeed, we have on other occasions recognized the
significance of silence, saying that " '[f]ailure to contest an
assertion ... is considered evidence of acquiescence ... if it
would have been natural under the circumstances to object to the
assertion in question.' "
Baxter v.
Palmigiano,
425 U. S. 308,
319 (1976) (quoting
United States v.
Hale, 422 U. S. 171, 176
(1975)). See also
United States ex rel. Bilokumsky v.
Tod, 263 U. S.
149, 153-154 (1923) ("Conduct which forms a basis for inference
is evidence. Silence is often evidence of the most persuasive
character") .
And as for history,
Griffin's pedigree is equally
dubious.
The question whether a factfinder may draw a logical inference
from a criminal defendant's failure to offer formal testimony would
not have arisen in 1791, because common-law evidentiary rules
prevented a criminal defendant from testifying in his own behalf
even if he wanted to do so. See generally
Ferguson v.
Georgia, 365
U. S. 570 (1961). That is not to say, however, that a criminal
defendant was not allowed to
speak in his own behalf, and a
tradition of expecting the defendant to do so, and of drawing an
adverse inference when he did not, strongly suggests that
Griffin is out of sync with the historical understanding of
the Fifth Amendment. Traditionally, defendants were expected to
speak rather extensively at both the pretrial and trial stages of a
criminal proceeding. The longstanding common-law principle,
nemo
333
tenetur seipsum prodere, was thought to ban only
testimony forced by compulsory oath or physical torture, not
voluntary, unsworn testimony. See T. Barlow, The Justice of Peace:
A Treatise Containing the Power and Duty of That Magistrate 189-190
(1745).
Pretrial procedure in colonial America was governed (as it had
been for centuries in England) by the Marian Committal Statute,
which provided:
"[S]uch Justices or Justice [of the peace] before whom any
person shall be brought for Manslaughter or Felony, or for
suspicion thereof, before he or they shall commit or send such
Prisoner to Ward, shall take the examination of such Prisoner, and
information of those that bring him, of the fact and circumstance
thereof, and the same or as much thereof as shall be material to
prove the Felony shall put in writing, within two days after the
said examination .... " 2 & 3 Philip & Mary, ch. 10
(1555).
The justice of the peace testified at trial as to the content of
the defendant's statement; if the defendant refused to speak, this
would also have been reported to the jury. Langbein, The Privilege
and Common Law Criminal Procedure, in The Privilege Against
Self-Incrimination 82, 92 (R. Helmholz et al. eds. 1997).
At trial, defendants were expected to speak directly to the
jury. Sir James Stephen described 17th- and 18th-century English
trials as follows:
"[T]he prisoner in cases of felony could not be defended by
counsel, and had therefore to speak for himself. He was thus unable
to say ... that his mouth was closed. On the contrary his mouth was
not only open, but the evidence given against him operated as so
much indirect questioning, and if he omitted to answer the
questions it suggested he was very likely to be convicted." J.
Ste-
334
phen, 1 History of the Criminal Law of England 440 (1883).
See also J. Beattie, Crime and the Courts in England: 16601800,
pp. 348-349 (1986) ("And the assumption was clear that if the case
against him was false the prisoner ought to say so and suggest why,
and that if he did not speak that could only be because he was
unable to deny the truth of the evidence"); 2 W. Hawkins, Pleas of
the Crown, ch. 39, § 2 (8th ed. 1824) (confirming that defendants
were expected to speak in their own defense at trial). Though it is
clear that adverse inference from silence was permitted, I have
been unable to find any case adverting to that inference in
upholding a conviction-which suggests that defendants rarely
thought it in their interest to remain silent. See Langbein,
supra, at 95-96.
No one, however, seemed to think this system inconsistent with
the principle of
nemo tenetur seipsum prodere. And there is
no indication whatever that criminal procedure in America made an
abrupt about-face when this principle was ratified as a fundamental
right in the Fifth Amendment and its state-constitution analogues.
See Moglen, The Privilege in British North America: The Colonial
Period to the Fifth Amendment, in The Privilege Against
Self-Incrimination,
supra, at 139-140. Justices of the peace
continued pretrial questioning of suspects, whose silence continued
to be introduced against them at trial. See,
e. g., Fourth
Report of the Commissioners on Practice and Pleadings in New
YorkCode of Criminal Procedure xxviii (1849); 1 Complete Works of
Edward Livingston on Criminal Jurisprudence 356 (1873). If any
objection was raised to the pretrial procedure, it was on the
purely statutory ground that the Marian Committal Statute had no
force in the new Republic. See,
e. g., W. Hening, The
Virginia Justice: Comprising the Office and Authority of a Justice
of the Peace 285 (4th ed. 1825). And defendants continued to speak
at their trials until the assistance of counsel became more common,
which occurred gradually
335
throughout the 19th century. See W. Beaney, The Right to Counsel
in American Courts 226 (1955).
The
Griffin question did not arise until States began
enacting statutes providing that criminal defendants were competent
to testify under oath on their own behalf. Maine was first in 1864,
and the rest of the States and the Federal Government eventually
followed. See 2 J. Wigmore, Evidence § 579 (3d ed. 1940). Although
some of these statutes (including the federal statute, 18 U. S. C.
§ 3481) contained a clause cautioning that no negative inference
should be drawn from the defendant's failure to testify,
disagreement with this approach was sufficiently widespread that,
as late as 1953, the Uniform Rules of Evidence drafted by the
National Conference of Commissioners on Uniform State Laws provided
that "[i]f an accused in a criminal action does not testify,
counsel may comment upon
[sic] accused's failure to testify,
and the trier of fact may draw all reasonable inferences
therefrom." Uniform Rule of Evidence 23(4). See also Model Code of
Evidence Rule 201(3) (1942) (similar).
Whatever the merits of prohibiting adverse inferences as a
legislative policy, see
ante, at 329-330, the text and
history of the Fifth Amendment give no indication that there is a
federal
constitutional prohibition on the use of the
defendant's silence as demeanor evidence. Our hardy forebears, who
thought of compulsion in terms of the rack and oaths forced by the
power of law, would not have viewed the drawing of a commonsense
inference as equivalent pressure. And it is implausible that the
Americans of 1791, who were subject to adverse inferences for
failing to give unsworn testimony, would have viewed an adverse
inference for failing to give sworn testimony as a violation of the
Fifth Amendment. Nor can it reasonably be argued that the new
statutes somehow created a "revised" understanding of the Fifth
Amendment that was incorporated into the Due Process Clause of the
Fourteenth Amendment, since only nine States (and not the Federal
Government) had enacted competency statutes
336
when the Fourteenth Amendment was adopted, and three of them did
not prohibit adverse inferences from failure to testify.1
The Court's decision in
Griffin, however, did not even
pretend to be rooted in a historical understanding of the Fifth
Amendment. Rather, in a breathtaking act of sorcery it simply
transformed legislative policy into constitutional command, quoting
a passage from an earlier opinion describing the benevolent
purposes of 18 U. S. C. § 3481, and then decreeing, with literally
nothing to support it: "If the words 'Fifth Amendment' are
substituted for 'act' and for 'statute,' the spirit of the
Self-Incrimination Clause is reflected." 380 U. S., at 613-614.
Imagine what a Constitution we would have if this mode of exegesis
were generally applied-if, for example, without any evidence to
prove the point, the Court could simply say of all federal
procedural statutes: "If the words 'Fifth Amendment' are
substituted for 'act' and for 'statute,' the spirit of the Due
Process Clause is reflected." To my mind,
Griffin was a
wrong turn-which is not cause enough to overrule it, but is cause
enough to resist its extension.
II
The Court asserts that it will not "adopt an exception" to
Griffin for the sentencing phase of a criminal case.
Ante, at 328. That characterization of what we are asked to
do is evidently demanded, in the Court's view, by the very text of
the Fifth Amendment: The phrase "any criminal case"
requires
us to "accord the privilege the same protection in the sentencing
phase ... as that which is due in the trial phase of the same
case."
Ante, at 329. That is demonstrably not so.
1 The statutes prohibiting an adverse inference were: 1866 Mass.
Acts, ch. 260; 1866 Vt. Laws No. 40; 1867 Nev. Stats., ch. XVIII;
1867 Ohio Leg. Acts 260; 1868 Conn. Laws, ch. XCVI; 1868 Minn.
Laws, ch. LXX. The statutes not prohibiting an adverse inference
were: 1864 Me. Acts, ch. 280; 1866 Cal. Stats., ch. DCXLIV; 1866 S.
C. Acts No. 4780.
337
Our case law has long recognized a natural dichotomy between the
guilt and penalty phases. The jury-trial right contained in the
Sixth Amendment-whose guarantees apply "[i]n all criminal
prosecutions," a term indistinguishable for present purposes from
the Fifth Amendment's "in any criminal case"-does not apply at
sentencing.
Spaziano v.
Florida, 468 U. S. 447, 462-463
(1984). Nor does the Sixth Amendment's guarantee of the defendant's
right "to be confronted with the witnesses against him." (The
sentencing judge may consider, for example, reports of probation
officers and psychiatrists without affording any
cross-examination.) See
Williams v.
New York,
337 U. S. 241,
252 (1949). Likewise inapplicable at sentencing is the requirement
of the Due Process Clause that the prosecution prove the essential
facts beyond a reasonable doubt.
McMillan v.
Pennsylvania, 477 U. S. 79, 92
(1986).
The Court asserts that refusing to apply
Griffin would
"truncate" our holding in
Estelle v.
Smith, 451 U. S. 454 (1981),
that the Fifth Amendment applies to sentencing proceedings.
Id., at 462. With the contrary indications in our case law,
however, it seems to me quite impossible to read
Estelle as
holding, not only that the Fifth Amendment applies to sentencing as
to guilt, but also that it has precisely the same scope in both
phases. Thus the question before us, fairly put, is not whether we
will "truncate"
Estelle or create an "exception" to
Griffin, but whether we will, for the first time, extend
Griffin beyond the guilt phase. For the answer to that
question, one would normally look to the historical understanding
of the "no adverse inference" constitutional practice. Since, as
described in Part I, there was no such practice, history is of no
help here, except to suggest that a mistakenly created
constitutional right should not be expanded.
Consistency with other areas of our jurisprudence points in the
same direction. We have permitted adverse inferences to be drawn
from silence where the consequence is a
338
denial of clemency, see
Ohio Adult Parole Authority v.
Woodard, 523
U. S. 272, 285-286 (1998), the imposition of punishment for
violation of prison rules, see
Baxter v.
Palmigiano,
425 U. S., at 318-319, and even deportation, see
INS v.
Lopez-Mendoza, 468 U. S. 1032,
1043-1044 (1984) (citing
United States ex rel. Bilokumsky v.
Tod, 263 U. S., at 153-154).2 There is no reason why the
increased punishment to which the defendant is exposed in the
sentencing phase of a completed criminal trial should be treated
differently-unless it is the theory that the guilt and sentencing
phases form one inseparable "criminal case," which I have refuted
above. Nor, I might add-despite the broad dicta that it quotes from
Estelle-does the majority really believe that the guilt and
sentencing phases are a unified whole, else it would not leave open
the possibility that the acceptanceof-responsibility Sentencing
Guideline escapes the ban on negative inferences.
Ante, at
330.
Which brings me to the greatest-the most bizarre-inconsistency
of all: the combination of the rule that the Court adopts today
with the balance of our jurisprudence relating to sentencing in
particular. "[C]ourts in this country and in England," we have
said, have "practiced a policy under which a sentencing judge [can]
exercise a wide discretion in the sources and types of evidence
used to assist him in de-
2 Even at trial, I might note, we have not held the "no adverse
inference" rule to be absolute. One year after
Griffin v.
California, 380 U. S. 609 (1965), we
did say in
Miranda v.
Arizona, 384 U. S. 436 (1966),
that a defendant's postarrest silence could not be introduced as
substantive evidence against him at trial.
Id., at 468, n.
37 (dictum). But we have also held that the Fifth Amendment permits
a defendant to be impeached with his prearrest silence,
Jenkins v.
Anderson, 447 U. S. 231, 238
(1980), or postarrest silence,
Fletcher v.
Weir,
455 U. S. 603
(1982)
(per curiam), if he later takes the stand during his
criminal trial; we have also recognized the vitality of our
pre-Griffin rule that a testifying defendant may be
impeached with his refusal to take the stand in a prior trial.
Jenkins, supra, at 235-236, and n. 2 (recognizing vitality
of
Raffel v.
United States, 271 U. S. 494
(1926)).
339
termining the kind and extent of punishment to be imposed within
limits fixed by law."
Williams v.
New York, supra, at
246. "[A] sentencing judge 'may appropriately conduct an inquiry
broad in scope, largely unlimited either as to the kind of
information he may consider, or the source from which it may
come.'''
Nichols v.
United States, 511 U. S. 738, 747 (1994)
(quoting
United States v.
Tucker, 404 U. S. 443, 446
(1972)). "Few facts available to a sentencing judge," we have
observed, "are more relevant to 'the likelihood that [a defendant]
will transgress no more, the hope that he may respond to
rehabilitative efforts to assist with a lawful future career, [and]
the degree to which he does or does not deem himself at war with
his society''' than a defendant's willingness to cooperate.
Roberts v.
United States, 445 U. S. 552, 558
(1980). See also 18 U. S. C. § 3661 ("No limitation shall be placed
on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of imposing
an appropriate sentence"). Today's opinion states, in as
inconspicuous a manner as possible at the very end of its analysis
(one imagines that if the statement were delivered orally it would
be spoken in a very low voice, and with the Court's hand over its
mouth), that its holding applies only to inferences drawn from
silence "in determining the facts of the offense."
Ante, at
330. "Whether silence bears upon the determination of a lack of
remorse, or upon acceptance of responsibility for purposes of the
downward adjustment provided in § 3E1.1 of the United States
Sentencing Guidelines (1998), is a separate question" on which the
majority expresses no view.
Ibid. Never mind that we have
said before, albeit in dicta, that "[w]e doubt that a principled
distinction may be drawn between 'enhancing' the punishment imposed
upon the petitioner and denying him the 'leniency' he claims would
be appropriate if he had cooperated."
Roberts, supra, at
557, n. 4.
340
Of course the clutter swept under the rug by limiting the
opinion to "determining facts of the offense" is not merely
application of today's opinion to § 3E1.1, but its application to
all determinations of acceptance of responsibility,
repentance, character, and future dangerousness, in both federal
and state prosecutions-that is to say, to what is probably the
bulk of what most sentencing is all about. If the Court
ultimately decides-in the fullness of time and after a decent
period of confusion in the lower courts-that the "no inference"
rule is indeed
limited to "determining facts of the
offense," then we will have a system in which a state court
can increase the sentence of a convicted drug possessor who
refuses to say how many ounces he possessed-not because that
suggests he possessed the larger amount (to make such an inference
would be unconstitutional!) but because his refusal to cooperate
suggests he is unrepentant. Apart from the fact that there is no
logical basis for drawing such a line
within the sentencing
phase (whereas drawing a line between guilt and sentencing is
entirely logical), the result produced provides new support for Mr.
Bumble's renowned evaluation of the law. Its only sensible feature
is that it will almost always be unenforceable, since it will
ordinarily be impossible to tell whether the sentencer has used the
silence for either purpose or for neither.
If, on the other hand, the Court ultimately decides-in the
fullness of time and after a decent period of confusion in the
lower courts-that the extension of
Griffin announced today
is not limited to "determining facts of the offense," then it will
have created a system in which we give the sentencing judge access
to all sorts of out-of-court evidence, including the most remote
hearsay, concerning the character of the defendant, his prior
misdeeds, his acceptance of responsibility and determination to
mend his ways, but declare taboo the most obvious piece of
firsthand evidence standing in front of the judge: the defendant's
refusal to cooperate with
341
the court. Such a rule orders the judge to avert his eyes from
the elephant in the courtroom when it is the judge's job to size up
the elephant.
The patent inadequacy of
both of these courses with
regard to determining matters other than the "facts of the offense"
is not finessed by simply resolving, for the time being, not to
choose between them. Sooner or later the choice must be made, and
the fact that both alternatives are unsatisfactory cries out that
the Court's extension of
Griffin is a mistake.
The Court asserts that the rule against adverse inferences from
silence, even in sentencing proceedings, "is of proven utility."
Ante, at 329. Significantly, however, the only utility it
proceeds to describe-that it is a "vital instrument" for teaching
jurors that "the question in a criminal case is not whether the
defendant committed the acts of which he is accused," but rather
"whether the Government has carried its burden to prove its
allegations"-is a utility that has no bearing upon sentencing, or
indeed even upon the usual sen
tencer, which is a judge
rather than a jury.
Ante, at 330.
***
Though the Fifth Amendment protects Mitchell from being
compelled to take the stand, and also protects her, as we have
held, from adverse inferences drawn from her silence at the guilt
phase of the trial, there is no reason why it must also shield her
from the natural and appropriate consequences of her
uncooperativeness at the sentencing stage. I respectfully
dissent.
JUSTICE THOMAS, dissenting.
JUSTICE SCALIA'S dissenting opinion persuasively demonstrates
that this Court's decision in
Griffin v.
California,
380 U. S. 609 (1965), lacks foundation in the Constitution's
text, history, or logic. The vacuousness of
Griffin supplies
"cause enough to resist its extension."
Ante, at 336. And,
in my view, it also illustrates that
Griffin and its
progeny, in-
342
cluding
Carter v.
Kentucky, 450 U. S. 288 (1981),
should be reexamined.
As JUSTICE SCALIA notes, the
"illogic of the
Griffin line is plain" and its historical "pedigree is
equally dubious."
Ante, at 332 (emphasis added). Not only
does
Griffin fail to withstand a proper constitutional
analysis, it rests on an unsound assumption.
Griffin relied
partly on the premise that comments about a defendant's silence
(and the inferences drawn therefrom) penalized the exercise of his
Fifth Amendment privilege. See
Griffin, supra, at 614;
Carter, supra, at 301. As the dissenting Justices in
Griffin rightly observed, such comments or inferences do not
truly "penalize" a defendant. See 380 U. S., at 620-621 (opinion of
Stewart, J., joined by White, J.) ("Exactly what the penalty
imposed consists of is not clear"); id., at 621 ("[T]he Court must
be saying that the California constitutional provision places some
other compulsion upon the defendant to incriminate himself, some
compulsion which the Court does not describe and which I cannot
readily perceive"). Prosecutorial comments on a defendant's
decision to remain silent at trial surely impose no greater
"penalty" on a defendant than threats to indict him on more serious
charges if he chooses not to enter into a plea bargain-a practice
that this Court previously has validated. See,
e. g.,
Bordenkircher v.
Hayes, 434 U. S. 357, 365 (1978)
(finding no due process violation where plea negotiations
"presented the defendant with the unpleasant alternatives of
forgoing trial or facing charges on which he was plainly subject to
prosecution"). Moreover, this so-called "penalty" lacks any
constitutional significance, since the explicit constitutional
guarantee has been fully honored-a defendant is not "compelled ...
to be a witness against himself," U. S. Const., Arndt. 5, merely
because the jury has been told that it may draw an adverse
inference from his failure to testify. See
Griffin, supra,
at 621 (Stewart, J., joined by White, J., dissenting) ("[C]omment
by counsel and the court does not compel testimony by creating such
an awareness" of a de-
343
fendant's decision not to testify);
Carter, supra, at 306
(Powell, J., concurring) ("But nothing in the [Self-Incrimination]
Clause requires that jurors not draw logical inferences when a
defendant chooses not to explain incriminating circumstances"). *
Therefore, at bottom,
Griffin constitutionalizes a policy
choice that a majority of the Court found desirable at the time.
Carter compounded the error. This sort of undertaking is not
an exercise in constitutional interpretation but an act of judicial
willfulness that has no logical stopping point. See
Carter,
supra, at 310 (REHNQUIST, J., dissenting) ("Such Thomistic
reasoning is now carried from the constitutional provision itself,
to the
Griffin case, to the present case, and where it will
stop no one can know").
We have previously recognized that
stare decisis is "at
its weakest when we interpret the Constitution because our
interpretation can be altered only by constitutional amendment or
by overruling our prior decisions."
Agostini v.
Felton, 521 U.
S. 203, 235 (1997). Given their indefensible foundations, I
would be willing to reconsider
Griffin and
Carter in
the appropriate case. For purposes of this case, which asks only
whether the principle established in
Griffin should be
extended, I agree that the Fifth Amendment does not prohibit a
sentencer from drawing an adverse inference from a defendant's
failure to testify and, therefore, join JUSTICE SCALIA'S
dissent.
*1 also agree with JUSTICE SCALIA,
ante, at 336, that
Griffin improperly relied on a prior decision interpreting a
federal statute to inform its resolution of a constitutional
question-an error the Court later repeated in
Carter. See
Griffin v.
California, 380 U. S. 609, 613-614
(1965);
Carter v.
Kentucky, 450 U. S. 288, 300-301,
n. 16 (1981).
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