October 25, 2004

Private: In Clarence Thomas' America, a Rule Against Self-Incrimination Would Serve to Incriminate


by Josh Kobrin, Sr. Editor-at-Large
It's safe to say that the self-incrimination clause plays such a large role in our legal culture that it has become part of the national vernacular. Arguably, through the Miranda warning, America has a greater understanding of the Fifth Amendment than of any other portion of the Constitution. Yet the value of the "right to remain silent"--whether during police questioning or at trial--can be limited. In the end, how the trier of fact interprets a defendant's silence can maintain the strength of the constitutional clause or completely de-legitimize its power.
The Court has largely maintained the Fifth Amendment's protections; in a criminal case, neither judge nor jury may draw a negative inference from the defendant's failure to testify. This rule began with Griffin v. California (1965), and as the Court pointed out in Mitchell v. United States (1999), it "is of proven utility."

In Mitchell, the defendant pleaded guilty to a conspiracy to distribute cocaine but reserved the right to contest the quantity of drugs involved--a fact essential to sentencing. Depending on the strength of the government's evidence, Mitchell could have received anywhere from 1 to 10 years. Yet during sentencing she failed to rebut the government's witnesses. When the court chose a minimum sentence of 10 years based on their testimony, it announced that it was in part persuaded to do so by the defendant's "not testifying to the contrary."
While the rule against adverse inferences from a defendant's failure to testify may once have been viewed as "a shelter for wrongdoers," the Mitchell court rightly recognized its accepted place in modern criminal procedure. In fact, when the Court decided Griffin, 44 states had already prevented prosecutors from encouraging the jury to draw adverse inferences from a defendant's failure to testify. In the years that followed, the once "unsettled rule" became "an essential feature of our legal tradition." In recognizing the significance of the clause, Mitchell held that a defendant who pleads guilty waives her fifth amendment right at trial but does not consent "to take the stand at the sentencing phase or suffer adverse consequences from declining to do so." As a result, the Court not only upheld the Fifth Amendment privilege at sentencing; it also maintained that a court could not draw a negative inference from its use in the same proceeding.
Justice Scalia dissented, questioning the logic and "pedigree" of the Griffin decision. However, he conceded that the wide acceptance of its negative inference rule "is adequate reason not to overrule" the case law that evolved from it. Not so with Justice Thomas. In a separate dissent, Thomas not only repudiated the Court's decision to extend this privilege against self-incrimination; he also repudiated Griffin and the cases that followed it, arguing that the line of decisions is "not an exercise in constitutional interpretation but an act of judicial willfulness that has no logical stopping point." Relying on Scalia's interpretation of history, Thomas took the arguments to a new conclusion, writing "I would be willing to reconsider Griffin...in the appropriate case".
Thomas' interpretation threatens to leave the self-incrimination clause devoid of meaning. A criminal case (in contrast to a civil case where a trier can draw inferences from a defendant's silence) requires that the government make a case beyond a reasonable doubt. As the Court in Mitchell points out, the question should not be whether an inference can be drawn from the defendant's silence but whether the prosecution has met this burden.
Today most defendants--innocent or not--refrain from taking the stand. Any defense lawyer can explain why it is often too risky to undergo a cross-examination. In Justice Thomas' America, this Fifth Amendment right would be transformed from a constitutional shield into an powerful state sword. In essence, the self-incrimination clause would become a defense liability rather than an individual right.

Criminal Justice