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The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant

Posted by on Friday, January 15, 2016 in Notes, Volume 69, Volume 69, Number 1.

The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant


For fifty years, Griffin v. California has denied prosecutors the tactical ability to comment on a defendant’s invocation of her Fifth Amendment right to silence as substantive evidence of guilt. However, a defendant’s right to silence is under attack, and for good reason. Studies show that juries draw adverse inferences of guilt based on a defendant’s silence irrespective of limiting instructions and Griffin’s purported protection against this very assumption. As such, the defendant-friendly doctrine that initially aimed to protect against compulsory testimony serves in practice as an impediment to the criminal defendant, lulling her into a false sense of security and encouraging the adoption of a trial strategy that is ultimately against her best interest. In an effort to ameliorate this underlying psychological bias, the adjudicatory process must be restructured to encourage a jury’s increased access to defendant testimony and other pertinent indicators of guilt and innocence. This Note argues thatGriffin should be abandoned in favor of specific controlled commentary and proposes that, in Griffin’s stead, Congress should amend Federal Rule of Evidence 609 to uniformly apply the more stringent “Reverse 403” standard currently governing Rule 609(b) to all criminal convictions introduced under the rule, thus severely limiting the admission of past convictions for impeachment purposes. Coupled with the removal of the Griffinroadblock, these procedural and substantive changes will encourage defendant testimony, provide sufficient protection when she does take the stand, and encourage verdict efficacy and perceptions of fairness and legitimacy by ensuring that the evidence juries take into the deliberation room is only that which is relevant to and probative of guilt.


J.D. Candidate, 2016, Vanderbilt University Law School; B.A., 2011, Cornell University. I would like to thank Professor Christopher Slobogin for posing the initial question behind this Note and his invaluable insight during its development; Professor Edward Cheng for sparking my interest in Evidence and his thoughtful feedback throughout the writing process; and the staff of the Vanderbilt Law Review for their diligent edits and commentary. Finally, a warm thank you to my family for their love, support, and humoring of my dinner table musings.