Disparagement of a Defendant's Decision Not to Testify
The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.; see also Cal. Const., art. I, 15.)
In Griffin v. California, the Supreme Court recognized this guarantee would have little meaning if the prosecution were allowed to disparage a defendant's decision not to testify.
Describing such disparagement as "a remnant of the inquisitorial system of justice" (Griffin v. California, supra, 380 U.S. at p. 614 85 S. Ct. at p. 1232), the court ruled the Fifth Amendment forbids "comment by the prosecution on the accused's silence." (Id. at p. 615 85 S. Ct. at p. 1233.)
Although the Griffin case involved direct reference to the defendant's failure to testify, the decision has been interpreted as prohibiting the prosecution from so much as suggesting to the jury that it may view the defendant's silence as evidence of guilt. (United States v. Robinson (1988) 485 U.S. 25, 32 108 S. Ct. 864, 869, 99 L. Ed. 2d 23, quoting Baxter v. Palmigiano (1976) 425 U.S. 308, 319 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810.)
Indeed, the California Supreme Court has declared, "Under the rule in Griffin, error is committed whenever the prosecutor . . . comments, either directly or indirectly, upon defendant's failure to testify in his defense." (People v. Medina (1995) 11 Cal. 4th 694, 755 47 Cal. Rptr. 2d 165, 906 P.2d 2.)