485 U. S. 25
February 24, 1988
At a mail fraud trial, the defense attorney claimed in closing arguments that his client had been denied an opportunity to tell his side of the story several times, including, ostensibly, at the trial itself. The prosecutor argued in response that the defendant had a perfect opportunity to tell his side at trial, but declined to do so. At the time, no objection was made to the prosecutor’s arguments. Later though, it was said that they violated the Griffin rule against commenting on a defendant’s silence.
The Court ruled 5-3 that no Constitutional rights were violated by the comment (Kennedy did not participate). Rehnquist said that the prosecutor was merely refuting a bad-faith argument by the defense attorney, and not attempting to suggest that the silence was evidence of guilt – the main harm that the Griffin rule was intended to guard against. Marshall, joined by Brennan, argued forcefully in dissent that the plain text of Griffin, and another case called Wilson, flatly prohibited all comment on trial silence, even if it was not intended to suggest the defendant’s guilt. From a textual matter, Marshall is surely right, but I still side with Rehnquist because the original Griffin rule was too broad, and ought not to have applied to situations like this.
The annoying wild card in all this was that there had been no objection to the prosecutor’s comment. Thus, the conviction could only be overturned if the error was “plain.” Rehnquist found no error at all, and thus sidestepped the issue. Marshall did not directly offer an opinion on this question either. Blackmun, writing for himself, agreed with Marshall that the comment constituted error, but wasn’t sure about plain error. He thought the lower court had gone completely astray on the issue, and that it needed to try again after getting better instruction from the Supreme Court. Like every Justice except Blackmun, I’m happy to simply sidestep this issue entirely.