Does the Fifth Amendment prohibit comment on the silence of a defendant?

California, United States of America


The following excerpt is from The People v. Lopez, G043191, No. 09NF2322 (Cal. App. 2011):

"[T]he Fifth Amendment prohibits comment on the defendant's silence...." (Griffin v. State of California (1965) 380 U.S. 609, 614, fn. 5.) "[C]omment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice, ' [citation]." (Id. at p. 614, fn. omitted.) "What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another." (Ibid.) "[G]rijfin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt." (Baxter v. Palmigiano (1976) 425 U.S. 308, 319.)

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