« Helen Irving: Constitutional Interpretation and the Discipline of History
Michael Ramsey
| Main | Glenn Harlan Reynolds & Brannon P. Denning: How to Stop Worrying and Learn to Love the Second Amendment
Michael Ramsey


Will Baude: Overrule Griffin v. California
Michael Ramsey

At Prawfsblog, Will Baude (guest blogging): Two and a Half Reasons to Overrule Griffin.  From the introduction:

Earlier this week, I mentioned as an aside that I appreciated Justice Thomas's call to overrule Griffin v. California (which forbids judicial and prosecutorial comment on a defendant's exercise of his right not to testify).  I don't have anything terribly profound to say about why, but since that view seemed to surprise and displease some people, I thought I'd say more about my thinking.

First, Griffin is probably wrong.  As Justices Thomas and Scalia discuss in their separate dissents in Mitchell v. United States, there's little reason to believe that the no-commenting-on-defendants'-silence rule has a historical basis, nor is it a straightforward reading of the text of the Fifth Amendment.   Petitioner's merits brief in Salinas did a creditable job of finding 19th century cases that supported the Griffin rule (see the three citations on page 13 of the brief), but the record is still pretty thin.

I like the methodology implied here (something I care about more than the actual result).  First, look at the text: what is a "straightforward" reading of it?  (That is, I would say, what seems to be the most natural reading?).  Here, the right not to testify does not necessarily imply anything about what inferences can be drawn from not testifying.  The right might stretch that far, but that is not compelled by the language alone.  One can imagine a rule that allowed defendants not to testify but also allowed comments on the exercise of that right.  Second, history may show that the text meant something more.  If it were understood at the time of the text's adoption that prosecutors were not allowed to comment on the defendant's refusal to testify, that would strongly tend to show that the drafters and ratifiers understood it to be a component of the defendant's right.  But, since that's an extension that's not self-evident from the text alone, the burden should be on the defendant to establish it.  Hence, no clear history, no right.