Lakeside v. Oregon

435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319, 1978 U.S. LEXIS 73

• Court: Supreme Court of the United States
• Decided: March 22, 1978
• Docket: 76-6942
• Status: Published

Opinions

Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner did not take the witness stand at his trial on a criminal charge in a state court. Over his objection the trial judge instructed the jury not to draw any adverse inference from the petitioner’s decision not to testify. The question before us is whether the giving of such an instruction over the defendant’s objection violated the Constitution.

I

The petitioner was brought to trial in an Oregon court on a charge of escape in the second degree.¹ The evidence showed that he had been an inmate of the Multnomah County Correctional Institution, a minimum-security facility in Multnomah County, Ore. On June 16, 1975, he received a special overnight pass requiring him to return by 10 o’clock the following evening. He did not return. The theory of the defense, supported by the testimony of a psychiatrist and three lay witnesses, was that the petitioner was not criminally responsible for his failure to return to the institution.²

At the conclusion of the evidence, the trial judge informed counsel in chambers that he intended to include the following instruction in his charge to the jury:

“Under the laws of this State a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence.”

Defense counsel objected to the giving of that instruction, and, after it was given, the following colloquy took place in chambers:

“ [Defense Counsel]: . . . I have one exception.

“I made this in Chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn’t have to take the stand, because I felt that that’s like waving a red flag in front of the jury....

“THE COURT: The defendant did orally request the Court just prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf.

“The Court felt that it was necessary to give that instruction in order to properly protect the defendant, and therefore, the defendant may have his exception.”

The Oregon Court of Appeals reversed the petitioner’s conviction and ordered a new trial on the ground that “the better rule is to not give instructions ostensibly designed for defendant’s benefit over the knowledgeable objection of competent defense counsel.” 25 Ore. App. 539, 542, 549 P. 2d 1287, 1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection of counsel did not violate the constitutional rights of the defendant. 277 Ore. 569, 561 P. 2d 612.

The petitioner then sought review in this Court, claiming that the instruction infringed upon both his constitutional privilege not to be compelled to incriminate himself, and his constitutional right to the assistance of counsel. Because of conflicting decisions in several other courts,³ we granted certiorari, 434 U. S. 889.

II

A

The Fifth Amendment commands that no person “shall be compelled in any criminal case to be a witness against himself.” This guarantee was held to be applicable against the States through the Fourteenth Amendment in Malloy v. Hogan, 378 U. S. 1.⁴ That case, decided in 1964, established that “the same standards” must attach to the privilege “in either a federal or state proceeding.” Id., at 11. Less than a year later the Court held in Griffin v. California, 380 U. S. 609, that it is a violation of this constitutional guarantee to tell a jury in a state criminal trial that a defendant’s failure to testify supports an unfavorable inference against him.⁵

In Griffin, the prosecutor had encouraged the jury to draw adverse inferences from the defendant’s failure to respond to the testimony against him. And the trial judge had instructed the jury that as to evidence which the defendant might be expected to explain, his failure to testify could be taken “ 'into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may' be reasonably drawn therefrom those unfavorable to the defendant are the more probable.’ ” Id., at 610. In setting aside the judgment of conviction, the Court held that the Constitution “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615.⁶

The Griffin opinion expressly reserved decision “on whether an accused can require . . . that the jury be instructed that his silence must be disregarded.” Id., at 615 n. 6. It is settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Ore. , 303 P. 2d 513.⁷ The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect an erroneous statement of the law. His argument is, quite simply, that this protective instruction becomes constitutionally impermissible when given over the defendant’s objection.

In the Griffin case, the petitioner argues, the Court said that “comment on the refusal to testify” violates the constitutional privilege against compulsory self-incrimination, 380 U. S., at 614, and thus the “comment” made by the trial judge over the defendant’s objection in the present case was a literal violation of the language of the Griffin opinion.⁸ Quite apart from this semantic argument, the petitioner contends that it is an invasion of the privilege against compulsory self-incrimination, as that privilege was perceived in the Griffin case, for a trial judge to draw the jury’s attention in any way to a defendant’s failure to testify unless the defendant acquiesces. We cannot accept this argument, either in terms of the language of the Griffin opinion or in terms of the basic postulates of the Fifth and Fourteenth Amendments.

It is clear from even a cursory review of the facts and the square holding of the Griffin case that the Court was there concerned only with adverse comment, whether by the prosecutor or the trial judge — “comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615. The Court reasoned that such adverse comment amounted to “a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Id., at 614.

By definition, “a necessary element of compulsory self-incrimination is some kind of compulsion.” Hoffa v. United States, 385 U. S. 293, 304. The Court concluded in Griffin that unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant’s failure to take the witness stand.⁹ But a judge’s instruction that the jury must draw no adverse inferences of any kind from the defendant’s exercise of his privilege not to testify is “comment” of an entirely different order. Such an instruction cannot provide the pressure on a defendant found impermissible in Griffin. On the contrary, its very purpose is to remove from the jury’s deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.

The petitioner maintains, however, that whatever beneficent effect such an instruction may have in most cases, it may in some cases encourage the jury to draw adverse inferences from a defendant’s silence, and, therefore, it cannot constitutionally be given in any case when a defendant objects to it. Specifically, the petitioner contends that in a trial such as this one, where the defense was presented through several witnesses, the defendant can reasonably hope that the jury will not notice that he himself did not testify. In such circumstances, the giving of the cautionary instruction, he says, is like “waving a red flag in front of the jury.”

The petitioner’s argument would require indulgence in two very doubtful assumptions: First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own;¹⁰ second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all.¹¹ Federal constitutional law cannot rest on speculative assumptions so dubious as these.

Moreover, even if the petitioner’s simile be accepted, it does not follow that the cautionary instruction in these circumstances violates the privilege against compulsory self-incrimination. The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. To instruct them in the meaning of the privilege against compulsory self-incrimination is no different.

It may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law. We hold only that the giving of such an instruction over the defendant’s objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments.¹²

B

The petitioner’s second argument is based upon his constitutional right to counsel. Gideon v. Wainwright, 372 U. S. 335; Argersinger v. Hamlin, 407 U. S. 25. That right was violated, he says, when the trial judge refused his lawyer’s request not to give the instruction in question, thus interfering with counsel’s trial strategy. That strategy assertedly was based upon studious avoidance of any mention of the fact that the defendant had not testified.

The argument is an ingenious one, but, as a matter of federal constitutional law, it falls of its own weight once the petitioner’s primary argument has been rejected. In sum, if the instruction was itself constitutionally accurate, and if the giving of it over counsel’s objection did not violate the Fifth and Fourteenth Amendments, then the petitioner’s right to the assistance of counsel was not denied when the judge gave the instruction. To hold otherwise would mean that the constitutional right to counsel would be implicated in almost every wholly permissible ruling of a trial judge, if it is made over the objection of the defendant’s lawyer.

In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel. But that right has never been understood to confer upon defense counsel the power to veto the wholly permissible actions of the trial judge. It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial. “ ‘[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.’ Quercia v. United States, 289 U. S. 466, 469 (1933).” Geders v. United States, 425 U. S. 80, 86.

The trial judge in this case determined in the exercise of his duty to give the protective instruction in the defendant’s interest. We have held that it was no violation of the defendant’s constitutional privilege for him to do so, even over the objection of defense counsel. Yet the petitioner argues that his constitutional right to counsel means that this instruction could constitutionally be given only if his lawyer did not object to it. We cannot accept the proposition that the right to counsel, precious though it be, can operate to prevent a court from instructing a jury in the basic constitutional principles that govern the administration of criminal justice.

For the reasons discussed in this opinion, the judgment of the Supreme Court of Oregon is affirmed.

It is so ordered.

Mr. Justice Brennan took no part in the consideration or decision of this case.

1 Section 162.155 of Ore. Rev. Stat. (1977) provides, in pertinent part:

“(1) A person commits the crime of escape in the second degree if:

"(c) He ¡escapes from a correctional facility."

2 Section 161.295 of Ore. Rev. Stat. (1977) provides:

"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

“(2) . . . [T]he terms 'mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

3 The federal courts have generally held that giving the protective instruction over the defendant’s objection is not a constitutional violation. See, e. g., United States v. Williams, 172 U. S. App. D. C. 290, 295, 521 F. 2d 950, 955; United States v. McGann, 431 F. 2d 1104, 1109 (CA5); United States v. Rimanich, 422 F. 2d 817, 818 (CA7); but cf. Mengarelli v. United States Marshal ex rel. Dist. of Nevada, 476 F. 2d 617 (CA9); United States v. Smith, 392 F. 2d 302 (CA4). By contrast, several state courts have held, although not always in constitutional terms, that the giving of such an instruction in these circumstances is prejudicial error. See, e. g., Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (reversible error); People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (proscribed by Griffin v. California, 380 U. S. 609); Gross v. State, 261 Ind. 489, 306 N. E. 2d 371 (violates Fifth Amendment); State v. Kimball, 176 N. W. 2d 864 (Iowa) (may violate spirit of Griffin).

4 The Malloy decision overruled the long-settled doctrine of Twining v. New Jersey, 211 U. S. 78, and Adamson v. California, 332 U. S. 46. See Snyder v. Massachusetts, 291 U. S. 97, 105; Cohen v. Hurley, 366 U. S. 117, 127-129.

5 The practice held unconstitutional in Griffin had previously been the subject of considerable academic and professional controversy. See, e. g., Note, Comment on Defendant’s Failure to Take the Stand, 57 Yale L. J. 145 (1947); Bruce, The Right to Comment on the Failure of the Defendant to Testify, 31 Mich. L. Rev. 226 (1932). Indeed, at one time the practice had enjoyed the approval of the American Law Institute and the American Bar Association. 9 ALI Proceedings 202, 203 (1931); 56 A. B. A. Rep. 137-159 (1931); 59 A. B. A. Rep. 130-141 (1934). And instructions similar to those at issue in Griffin had been sanctioned by the Model Code of Evidence and the Uniform Rules of Evidence. ALI Model Code of Evidence, Rule 201 (1942); Uniform Rules of Evidence, Rule 23 (4) (1953).

6 In Tehan v. United States ex rel. Shott, 382 U. S. 406, it was held that the rule of Griffin v. California was not to be given retrospective application.

7 It has long been established that a defendant in a federal criminal trial has that right as a matter of statutory law. Bruno v. United States, 308 U. S. 287.

8 The petitioner also relies upon a remark in the dissenting opinion in United States v. Gainey, 380 U. S. 63, 73: or, if the defendant sees fit, he may choose to have no mention made of his silence by anyone.” This reliance is misplaced. The Gainey case did not involve the Fifth Amendment; the statement in the dissenting opinion expressed the author’s understanding of a federal statute, not the Constitution; and, perhaps most important, the statement was subscribed to by no other Member of the Court.

9 Compulsion was also found to be present in Brooks v. Tennessee, 406 U. S. 605, where the State required a defendant who chose to testify to take the witness stand ahead of any other defense witnesses. Thus a defendant was compelled to make his decision — whether or not to testify — at a point in the trial when he could not know if his testimony would be necessary or even helpful to his case. Id., at 610-611.

10 It has often been noted that such inferences may be inevitable. Jeremy Bentham wrote more than 150 years ago: “[Bjetween delinquency on the one hand, and silence under inquiry on the other, there is a manifest connexion; a connexion too natural not to be constant and inseparable.” 5 J. Bentham, Rationale of Judicial Evidence 209 (1827). And Wigmore, among many others, made the same point: "What inference does a plea of privilege support? The layman’s natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.” 8 J. Wigmore, Evidence §2272, p. 426 (McNaughton rev. 1961).

11 As this Court has remarked before: “[W]e have not yet attained that certitude about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court . . . .” Bruno v. United States, supra, at 294.

12 More than 50 years ago, Judge Learned Hand dealt with this question in a single sentence: “It is no. doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.” Becher v. United States, 5 F. 2d 45, 49 (CA2).