Chilling Effect On the Privilege Against Compelled Self-Incrimination

• Jurisdiction: Maryland

V. Chilling effect on the privilege against compelled self-incrimination

The Government may not create a chilling effect on the exercise of the privilege against compelled self-lncrimination by making the defendant "pay a price" for the right to assert the privilege.

A. Chilling effect on the defendant's election not to testify

In Griffin v. California, 380 U.S. 609, 615 (1965), the defendant elected not to testify, and the trial court instructed the jury, and the State argued, that the defendant's failure to testify could be considered by the jury in determining whether the defendant was guilty. The Supreme Court held that the court's instructions violated the privilege against compelled self-incrimination by creating a chilling effect on the exercise of that privilege.

The court must, at the defendant's request, instruct the jury that it may not draw an adverse inference from the defendant's election not to testify. Carter v. Kentucky, 450 U.S. 288, 300 (1981). The Supreme Court held that an instruction regarding not drawing a negative inference may be given, even over the defendant's objection. Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978). In Maryland, the court may not give the "no adverse inference" instruction without the defendant's permission. Hardaway v. State, 317 Md. 160, 168-69 (1989) (citing with approval MPJI-Cr 3:17).

In Crosby, 366 Md. 518, the Court of Appeals stated: "An inherent component of this guarantee is that one who invokes the privilege against self-incrimination shall remain free from adverse presumptions surrounding the exercise of such right." Id. at 527-28; see Bowen v. State, 5 Md. App. 713, 717-18 (1969). Md. Code Ann., Cts. & Jud. Proc. § 9-107, provides: "The failure of a defendant to testify in a criminal proceeding . . . does not create any presumption against him."

The defendant's exercise of his right to remain silent may not be considered by the sentencing judge or considered as a sentencing factor. In Ridenour, 142 Md. App. 1, the Court of Special Appeals held: "The overall thrust of the sentencing judge's remarks was to criticize the [defendant] for not acknowledging his guilt 'the first thing' after the break-in—i.e., for exercising his constitutional right to remain silent. The sentencing court plainly erred in taking into consideration the [defendant's] decision to exercise his Fifth Amendment right to remain silent in sentencing him." Id. at 15-16.

In Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that a defendant cannot appeal the denial of a motion in limine, seeking to exclude the use of prior crimes for purposes of impeachment when the defendant does not testify. The Court stated: "[T]o raise and preserve for review the claim of improper impeachment with a prior conviction, a must testify." Id. at 43.

Nonetheless, the Court indicated that issues of "constitutional dimension," e.g., whether the Fifth Amendment privilege against compelled self-incrimination was improperly chilled, could be reviewed without the defendant testifying. Id. at 42-43; see New Jersey v. Portash, 440 U.S. 450 (1979); Brooks v. Tennessee, 406 U.S. 605 (1972); Jordan v. State, 323 Md. 151, 158-59 (1991) (adopting Luce).

In Dallas, 413 Md. 569, the trial court refused to rule on...