Griffin v. California: Still Viable After All These Years

In a recent article in the Michigan Law Review, Donald Ayer levels a series of attacks on the Griffin decision. Specifically, he maintains that the decision is at once too broad, because it requires “almost automatic reversal where there are any remarks explicitly focused on the defendant’s silence and the inference of guilt to be drawn from it” regardless of the strength of the prosecution’s case, and too narrow, because it fails to prevent the natural prejudice against the nontestifying defendant that may arise in the minds of the jurors without any encouragement from prosecutor or judge. Ayer also contends that prosecutors should be permitted to argue that a defendant’s failure to testify is evidence that he is guilty because such an argument is “rational” and advances the search for truth. Finally, he urges that the Griffin rule finds no basis in the fifth amendment and its historic purposes.

This Comment challenges all three of Mr. Ayer’s arguments. It takes the position that the limitations on prosecutorial conduct established in Griffin remain an important and logically defensible protection of the defendant’s fifth amendment right not to testify. Moreover, it argues that Ayer’s attacks on the Griffin doctrine are based upon a fundamental misconception about the reasons criminal defendants choose not to testify at trial.