Tehan v. Shott,
382 U.S. 406 (1966)

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U.S. Supreme Court

Tehan v. Shott, 382 U.S. 406 (1966)

Tehan v. Shott

No. 52

Argued November 18, 1965

Decided January 19, 1966

382 U.S. 406


In 1961 respondent was tried and convicted in an Ohio court for violation of the Ohio Securities Act. Respondent had not taken the stand, and the prosecutor commented extensively, as permitted by Ohio law, on his failure to testify. The conviction was affirmed by an Ohio court of appeals, the State Supreme Court declined review, and this Court dismissed an appeal and denied certiorari in 1963. Shortly thereafter respondent sought a writ of habeas corpus, alleging various constitutional violations at his trial. The federal District Court dismissed the petition, but the Court of Appeals reversed, noting that, on the day preceding oral argument of the appeal, the Supreme Court, in Malloy v. Hogan, 378 U. S. 1, held that the Fifth Amendment's freedom from self-incrimination is also protected by the Fourteenth against state abridgment, and reasoning that the protection includes freedom from comment on failure to testify. In Griffin v. California, 380 U. S. 609, this Court held that adverse comment on a defendant's failure to testify in a state criminal trial violates the privilege against self-incrimination, and the parties here were requested to brief and argue the question of the retroactivity of that doctrine.

Held: The doctrine of Griffin v. California will not be applied retrospectively. Linkletter v. Walker, 381 U. S. 618, followed. Pp. 382 U. S. 409-419.

337 F.2d 990, vacated and remanded.

Page 382 U. S. 407

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