Turmoil surrounding the self-incrimination clause: why the Constitution does not forbid your silence from speaking volumes.

• Author: Gajiev, Zaur D.
• Position: I. Introduction into II. An Examination of the History Behind the Privilege Against Self-Incrimination H. The Common Law Privilege Becomes a Constitutional Right, p. 231-256

1. INTRODUCTION II. AN EXAMINATION OF THE HISTORY BEHIND THE PRIVILEGE AGAINST SELF-INCRIMINATION A. The Deification of a Feudal Document B. Development of Two Rival Systems of Criminal Procedure C. The English Crown's Interest in Inquisitorial Procedure D. The Tudor Dynasty and the English Reformation E. Opposition Against Inquisitorial Procedure Intensifies F. The Stuart Dynasty and the End of the Oath Ex Officio G. The Privilege Migrates to Colonial America; Its Use in Criminal Procedure H. The Common Law Privilege Becomes a Constitutional Right I. Criminal Procedure in the Newly-Established United States III. THE CURRENT SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION IV. DEVIATION FROM THE COMPULSION ANALYSIS CAUSES TURMOIL IN CONSTITUTIONAL INTERPRETATION A. The Supreme Court's Inconsistent Policy Rationales B. Trading the Compulsion Analysis for the "Penalty" Theory C. Instability in the Lower Courts Regarding Pre-Arrest Silence V. WHERE DO WE GO FROM HERE? THE COMPULSION ANALYSIS IN ACTION VI. CONCLUSION I. INTRODUCTION

   Early in Los Angeles on the morning of December 3, 1961, a man with multiple prior felony convictions named Eddie Griffin emerged from a large trash box in an alleyway, buttoned up his trousers, and walked away. (1) Inside the trash box was a young girl named Essie Mae Hodson--savagely beaten, bleeding, and barely conscious. (2) When police discovered Essie Mae's body, they took her to a nearby hospital, where the doctors treated her for a fractured skull, bruises on her scalp, eyes, forehead, and lips, and multiple abrasions on her ankles, hips, and back. (3) Despite the doctors' efforts to save her, Essie Mae died from her injuries the following afternoon. (4)

   Authorities arrested Eddie Griffin in Mexicali, Mexico and charged him in California for Essie Mae's murder. (5) Upon his arrest, Griffin told police that on the morning of the incident, he was inside an apartment that Essie Mae shared with her boyfriend, that Essie Mae suffered her injuries from a struggle between her boyfriend and Griffin, and that after the struggle, Essie Mae--even though she was badly injured--took Griffin to the trash box behind the apartment building and voluntarily engaged in intercourse with him. (6) But Griffin refused to testify at trial. (7) During trial, the prosecutor commented on Griffin's failure to testify: "The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.... Essie Mae is dead, she can't tell you her side of the story. The defendant won't." (8)

   Griffin was convicted of Essie Mae's murder in the first degree. (9) The California Supreme Court affirmed the conviction, and subsequently the U.S. Supreme Court granted certiorari to determine whether the prosecutor's "comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment," (10) which provides that no person "shall be compelled in any criminal case to be a witness against himself." (11) In a decision entrenched in controversy to this day, (12) the Griffin majority reversed Eddie Griffin's conviction, holding that the Self-Incrimination Clause prohibited prosecutorial comments on a defendant's refusal to testify at trial. (13)

   The majority failed, however, to evaluate whether the prosecutor's comment actually exerted a compelling pressure on Griffin to testify at his trial. (14) Instead, the Justices opined that the comment was unconstitutional because it imposed a "penalty" upon Griffin's exercise of the privilege against self-incrimination. (15) Furthermore, the majority failed to analyze whether the language or history of the Self-Incrimination Clause supported its decision. (16) Rather, the majority fashioned a new evidentiary rule prohibiting comments to jurors regarding the drawing of a natural inference from silence. (17,) As a result, the Griffin majority created a new constitutional right without any basis in the Constitution itself. (18)

   It is true that the U.S. Constitution was intended to endure and that the Framers envisioned some degree of flexibility in its interpretation. (19,) However, without properly considering its language and history, the Constitution becomes, as Thomas Jefferson said, "a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." (20) This risk is magnified when the judiciary fails to articulate a consistent rationale underlying a constitutional right, as seen with the Self-Incrimination Clause, where at least a dozen justifications have been suggested for the privilege. (21) Indeed, Justice Arthur Goldberg observed that the privilege is "regarded as so fundamental a part of our constitutional fabric, despite the fact that the law and the lawyers have never made up their minds just what it is supposed to do or just whom it is supposed to protect." (22)

   As a result of the Court's failure to articulate a consistent rationale underlying the privilege, lower courts are deprived of a framework with which to approach self-incrimination problems. (23) Additionally, the Griffin majority's expansion of the privilege's scope has been met with robust opposition, (24) especially from within the Court itself. (25) Furthermore, there is an open question regarding whether the Griffin rule extends to prohibit evidence of a criminal defendant's pre-arrest silence, (26) which has caused conflicting jurisdictional rules on the issue among lower courts. (27) As a result, verdicts in criminal trials involving evidence of pre-arrest silence vary significantly throughout the United States, as the admission of such evidence often makes the difference between conviction and acquittal. (28)

   In 2013, the Supreme Court granted certiorari in Salinas v. Texas to resolve the circuit split on the use of pre-arrest silence. (29) However, because the petitioner in Salinas did not expressly invoke the privilege against self-incrimination during his pre-arrest interview with police, the Court declined to reach the issue of whether the...