NCJ Number
15793
Journal
California Law Review Volume: 61 Issue: 6 Dated: (DECEMBER 1973) Pages: 1422-1441
Date Published
1973
Length
20 pages
Annotation
ARGUMENT THAT ALL COMMENT ABOUT A CRIMINAL DEFENDANT'S FAILURE TO PRODUCE A WITNESS SHOULD BE PROHIBITED AS INFRINGING UPON HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.
Abstract
WHEN ONE PARTY IN A CIVIL OR CRIMINAL TRIAL FAILS TO PRESENT MATERIAL EVIDENCE KNOWN TO EXIST, THE SANCTION IMPOSED UPON THIS PARTY IS THE RAISING OF AN ADVERSE INFERENCE FROM HIS FAILURE TO ACT, WHICH MAY BE ARGUED TO THE JURY BY HIS OPPONENT. THIS COMMENT EXPLORES THE GENERAL WEAKNESSES OF THE INFERENCE RULE AND DISCUSSES MEANS OF MINIMIZING INACCURACY IN THE INFERENCE DRAWN. THE BASIS FOR THE TRADITIONAL INFERENCE RULE IS EXAMINED AND THE AUTHOR CRITICIZES THE RULE ON THE GROUNDS THAT IT INVITES WASTE OF VALUABLE COURT TIME AND IS DIFFICULT TO ADMINISTER FAIRLY. IT IS ARGUED THAT ALTHOUGH THE COURT'S RULING IN THE 1965 CASE OF GRIFFIN V. CALIFORNIA PROTECTED A CRIMINAL DEFENDANT'S SILENCE, UNDER THE CONSTITUTION, FROM INFERENCE AND COMMENT, THE COURTS HAVE NOT EXTENDED THE FIFTH AMENDMENT TO BAR COMMENT ON A DEFENDANT'S FAILURE TO PRODUCE MATERIAL TESTIMONY OTHER THAN HIS OWN. THE AUTHOR CONTENDS THAT THE SCOPE OF THE FIFTH AMENDEMNT PRIVILEGE AGAINST SELF-INCRIMINATION MUST BE EXTENDED TO A DEFENDANT'S FAILURE TO PRODUCE A MATERIAL WITNESS OTHER THAN HIMSELF IF PERMITTING COMMENT ON THE DEFENDANT'S CONDUCT AMOUNTS TO COMPELLING HIM TO PROVIDE THE STATE WITH EVIDENCE OF A TESTIMONIAL OR COMMUNICATIVE NATURE. THE AUTHOR CITES SEVERAL SUPREME COURT DECISIONS TO SUPPORT HER ARGUMENT.