Does the Fifth Amendment bar the prosecution from commenting on the refusal to testify in a civil case?

California, United States of America


The following excerpt is from People v. Gutierrez, B245933 (Cal. App. 2014):

In Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] (Griffin), the high court held that the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin, at p. 615.) In reaching this decision, the high court observed that "comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice' [citation] which the Fifth Amendment outlaws. It is a penalty imposed . . . for exercising a constitutional privilege [and] . . . cuts down on the privilege by making its assertion costly." (Id. at p. 614, fn. omitted.)

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