Comment to the jury by a prosecutor in a state criminal trial
upon a defendant's failure to testify as to the matters which he
can reasonably be expected to deny or explain because of facts
within his knowledge or by the court that the defendant's silence
under those circumstances evidences guilt violates the
Self-Incrimination Clause of the Fifth Amendment of the Federal
Constitution, as made applicable to the States by the Fourteenth,
Malloy v. Hogan, 378 U. S. 1.
380 U. S.
610-615.
60 Cal. 2d
182, 383 P.2d 432, reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was convicted of murder in the first degree after a
jury trial in a California court. He did not testify at the trial
on the issue of guilt, though he did testify at the separate trial
[
Footnote 1] on the issue of
penalty. The trial court instructed the jury on the issue of guilt,
stating
Page 380 U. S. 610
that a defendant has a constitutional right not to testify. But
it told the jury: [
Footnote
2]
"As to any evidence or facts against him which the defendant can
reasonably be expected to deny or explain because of facts within
his knowledge, if he does not testify or if, though he does
testify, he fails to deny or explain such evidence, the jury may
take that failure into consideration as tending to indicate the
truth of such evidence and as indicating that among the inferences
that may be reasonably drawn therefrom those unfavorable to the
defendant are the more probable."
It added, however, that no such inference could be drawn as to
evidence respecting which he had no knowledge. It stated that
failure of a defendant to deny or explain the evidence of which he
had knowledge does not create a presumption of guilt, nor, by
itself, warrant an inference of guilt nor relieve the prosecution
of any of its burden of proof.
Petitioner had been seen with the deceased the evening of her
death, the evidence placing him with her in the alley where her
body was found. The prosecutor made much of the failure of
petitioner 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."
"What kind of a man is it that would want to have sex with a
woman that beat up is she was beat up at the time he left? "
Page 380 U. S. 611
"He would know that. He would know how she got down the alley.
He would know how the blood got on the bottom of the concrete
steps. He would know how long he was with her in that box. He would
know how her wig got off. He would know whether he beat her or
mistreated her. He would know whether he walked away from that
place cool as a cucumber when he saw Mr. Villasenor, because he was
conscious of his own guilt and wanted to get away from that damaged
or injured woman."
"These things he has not seen fit to take the stand and deny or
explain."
"And, in the whole world, if anybody would know, this defendant
would know."
"Essie Mae is dead; she can't tell you her side of the story.
The defendant won't."
The death penalty was imposed, and the California Supreme Court
affirmed.
60 Cal. 2d
182, 32 Cal. Rptr. 24, 383 P.2d 432. The case is here on a writ
of certiorari which we granted, 377 U.S. 989, to consider whether
comment on the failure to testify violated the Self-Incrimination
Clause of the Fifth Amendment which we made applicable to the
States by the Fourteenth in
Malloy v. Hogan, 378 U. S.
1, decided after the Supreme Court of California had
affirmed the present conviction. [
Footnote 3]
Page 380 U. S. 612
If this were a federal trial, reversible error would have been
committed.
Wilson v. United States, 149 U. S.
60, so holds. It is said, however, that the
Wilson decision rested not on the Fifth Amendment, but on
an Act of Congress, now 18 U.S.C. § 3481. [
Footnote 4] That indeed is the fact, as the opinion of
the Court in the
Wilson case states.
And see Adamson
v. California, 332 U. S. 46,
332 U. S. 50, n.
6;
Page 380 U. S. 613
Bruno v. United States, 308 U.
S. 287,
308 U. S. 294.
But that is the beginning, not the end, of our inquiry. The
question remains whether, statute or not, the comment rule,
approved by California, violates the Fifth Amendment.
We think it does. It is, in substance, a rule of evidence that
allows the State the privilege of tendering to the jury for its
consideration the failure of the accused to testify. No formal
offer of proof is made, as in other situations, but the
prosecutor's comment and the court's acquiescence are the
equivalent of an offer of evidence and its acceptance. The Court in
the
Wilson case stated:
". . . the act was framed with a due regard also to those who
might prefer to rely upon the presumption of innocence which the
law gives to everyone, and not wish to be witnesses. It is not
everyone who can safely venture on the witness stand though
entirely innocent of the charge against him. Excessive timidity,
nervousness when facing others and attempting to explain
transactions of a suspicious character and offenses charged against
him will often confuse and embarrass him to such a degree as to
increase, rather than remove, prejudices against him. It is not
everyone, however, honest, who would therefore willingly be placed
on the witness stand. The statute, in tenderness to the weakness of
those who from the causes mentioned might refuse to ask to be
witnesses, particularly when they may have been in some degree
compromised by their association with others, declares that the
failure of a defendant in a criminal action to request to be a
witness shall not create any presumption against him."
149 U.S. p.
149 U. S.
66.
If the words "fifth Amendment" are substituted for "act" and,
for "statute," the spirit of the Self-Incrimination
Page 380 U. S. 614
Clause is reflected. For comment on the refusal to testify is a
remnant of the "inquisitorial system of criminal justice,"
Murphy v. Waterfront Comm., 378 U. S.
52,
378 U. S. 55,
which the Fifth Amendment outlaws. [
Footnote 5] It is a penalty imposed by courts for
exercising a constitutional privilege. It cuts down on the
privilege by making its assertion costly. It is said, however, that
the inference of guilt for failure to testify as to facts
peculiarly within the accused's knowledge is, in any event, natural
and irresistible, and that comment on the failure does not magnify
that inference into a penalty for asserting a constitutional
privilege.
People v. Modesto, 62 Cal. 2d
436, 452-453, 42 Cal. Rptr. 417, 426-427, 398 P.2d 753,
762-763. 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. That the
inference
Page 380 U. S. 615
of guilt is not always so natural or irresistible is brought out
in the
Modesto opinion itself:
"Defendant contends that the reason a defendant refuses to
testify is that his prior convictions will be introduced in
evidence to impeach him (Code Civ.Proc. § 2051), and not that he is
unable to deny the accusations. It is true that the defendant might
fear that his prior convictions will prejudice the jury, and
therefore another possible inference can be drawn from his refusal
to take the stand."
Id. p. 453, 42 Cal.Rptr., p. 427, 398 P.2d, p. 763.
We said in
Malloy v. Hogan, supra, p.
378 U. S. 11,
that "the same standards must determine whether an accused's
silence in either a federal or state proceeding is justified." We
take that in its literal sense, and hold that the Fifth Amendment,
in its direct application to the Federal Government and in its
bearing on the States by reason of the Fourteenth Amendment,
forbids either comment by the prosecution on the accused's silence
or instructions by the court that such silence is evidence of
guilt. [
Footnote 6]
Reversed.
THE CHIEF JUSTICE took no part in the decision of this case.
[
Footnote 1]
See Penal Code § 190.1, providing for separate trials
on the two issues.
[
Footnote 2]
Article I, § 13, of the California Constitution provides in
part:
". . . in any criminal case, whether the defendant testifies or
not, his failure to explain or to deny by his testimony any
evidence or facts in the case against him may be commented upon by
the court and by counsel, and may be considered by the court or the
jury."
[
Footnote 3]
The California Supreme Court later held, in
People v.
Modesto, 62 Cal. 2d
436, 42 Cal. Rptr. 417, 398 P.2d 753, that its "comment" rule
squared with
Malloy v. Hogan, 378 U. S.
1. The overwhelming consensus of the States, however, is
opposed to allowing comment on the defendant's failure to testify.
The legislatures or courts of 44 States have recognized that such
comment is, in light of the privilege against self-incrimination,
"an unwarrantable line of argument."
State v. Howard, 35
S.C. 197, 203, 14 S.E. 481, 483.
See 8 Wigmore, Evidence §
2272, n. 2 (McNaughton rev. ed. 1961 and 1964 Supp.). Of the six
States which permit comment, two, California and Ohio, give this
permission by means of an explicit constitutional qualification of
the privilege against self-incrimination. Cal.Const. Art. I, § 13;
Ohio Const. Art. I, § 10. New Jersey permits comment,
State v.
Corby, 28 N.J. 106,
145 A.2d
289;
cf. State v. Garvin, 44 N.J. 268,
208 A.2d
402; but its constitution contains no provision embodying the
privilege against self-incrimination (
see Laba v. Newark Bd. of
Educ., 23 N.J. 364, 389,
129 A.2d
273, 287;
State v. White, 27 N.J. 158, 168-169,
142 A.2d
65, 70). The absence of an express constitutional privilege
against self-incrimination also puts Iowa among the six.
See
State v. Ferguson, 226 Iowa 361, 372-373, 283 N.W. 917, 923.
Connecticut permits comment by the judge, but not by the
prosecutor.
State v. Heno, 119 Conn. 29, 174 A. 181. New
Mexico permits comment by the prosecutor, but holds that the
accused is then entitled to an instruction that "the jury shall
indulge no presumption against the accused because of his failure
to testify." N.M.Stat.Ann. § 41-12-19;
State v. Sandoval,
59 N.M. 85, 279 P.2d 850.
[
Footnote 4]
Section 3481 reads as follows:
"In trial of all persons charged with the commission of offenses
against the United States and in all proceedings in courts martial
and courts of inquiry in any State, District, Possession or
Territory, the person charged shall, at his own request, be a
competent witness. His failure to make such request shall not
create any presumption against him."
June 25, 1948, c. 645, 62 Stat. 833.
The legislative history shows that 18 U.S.C. § 3481 was
designed,
inter alia, to bar counsel for the prosecution
from commenting on the defendant's refusal to testify. Mr. Frye of
Maine, spokesman for the bill, said, "That is the law of
Massachusetts, and we proposed to adopt it as a law of the United
States." 7 Cong.Rec. 385. The reference was to Mass.Stat. 1866, c.
260, now Mass.Gen.Laws Ann., c. 233, § 20, cl. Third (1959), which
is almost identical with 18 U.S.C. § 3481.
See also
Commonwealth v. Harlow, 110 Mass. 411;
Commonwealth v.
Scott, 123 Mass. 239;
Opinion of the Justices, 300
Mass. 620, 15 N.E.2d 662.
[
Footnote 5]
Our decision today that the Fifth Amendment prohibits comment on
the defendant's silence is no innovation, for, on a previous
occasion, a majority of this Court indicated their acceptance of
this proposition. In
Adamson v. California, 332 U. S.
46, the question was, as here, whether the Fifth
Amendment proscribed California's comment practice. The four
dissenters (BLACK, DOUGLAS, Murphy and Rutledge, JJ.) would have
answered this question in the affirmative. A fifth member of the
Court, Justice Frankfurter, stated in a separate opinion:
"For historical reasons, a limited immunity from the common duty
to testify was written into the Federal Bill of Rights, and I am
prepared to agree that, as part of that immunity, comment on the
failure of an accused to take the witness stand is forbidden in
federal prosecutions."
Id. p.
332 U. S. 61.
But, though he agreed with the dissenters on this point, he also
agreed with Justices Vinson, Reed, Jackson, and Burton that the
Fourteenth Amendment did not make the Self-Incrimination Clause of
the Fifth Amendment applicable to the States; thus, he joined the
opinion of the Court which so held (the Court's opinion assumed
that the Fifth Amendment barred comment, but it expressly
disclaimed any intention to decide the point.
Id. p.
332 U. S.
50).
[
Footnote 6]
We reserve decision on whether an accused can require, as in
Bruno v. United States, 308 U. S. 287,
that the jury be instructed that his silence must be
disregarded.
MR. JUSTICE HARLAN, concurring.
I agree with the Court that, within the federal judicial system,
the Fifth Amendment bars adverse comment by federal prosecutors and
judges on a defendant's failure to take the stand in a criminal
trial, a right accorded him by that amendment. And given last
Term's decision in
Malloy v. Hogan, 378 U. S.
1, that the Fifth Amendment applies
Page 380 U. S. 616
to the States in all its refinements, I see no legitimate escape
from today's decision and therefore concur in it. I do so, however,
with great reluctance, since, for me, the decision exemplifies the
creeping paralysis with which this Court's recent adoption of the
"incorporation" doctrine is infecting the operation of the federal
system.
See my opinion concurring in the result in
Pointer v. Texas, 380 U. S. 400, at
380 U. S.
408.
While I would agree that the accusatorial, rather than
inquisitorial, process is a fundamental part of the "liberty"
guaranteed by the Fourteenth Amendment, my Brother STEWART, in
dissent, post, p.
380 U.S.
617, fully demonstrates that the no-comment rule "might be
lost, and justice still be done,"
Palko v. Connecticut,
302 U. S. 319,
302 U. S. 325.
As a "non-fundamental" part of the Fifth Amendment (
cf. my
opinion concurring in the result in
Pointer, 380 U.S. at
380 U. S.
409), I would not, but for
Malloy, apply the
no-comment rule to the States.
Malloy put forward a single argument for applying the
Fifth Amendment, as such, to the States:
"It would be
incongruous to have different standards
determine the validity of a claim of privilege . . ., depending on
whether the claim was asserted in a state or federal court.
Therefore, the same standards must determine whether an accused's
silence in either a federal or state proceeding is justified."
Malloy v. Hogan, supra, at
378 U. S. 11.
(Emphasis added.)
My answer then (378 U.S. at
378 U. S. 27) and
now is that "incongruity," within the limits of fundamental
fairness, is at the heart of our federal system. The powers and
responsibilities of the State and Federal Governments are not
congruent, and, under the Constitution, they are not intended to
be.
It has also recently been suggested that measuring state
procedures against standards of fundamental fairness as reflected
in such landmark decision as
Twining v.
New
Page 380 U. S. 617
Jersey, 211 U. S. 78, and
Palko v. Connecticut, supra, "would require this Court to
intervene in the state judicial process with considerable lack of
predictability and with a consequent likelihood of considerable
friction,"
Pointer v. Texas, supra, at
380 U. S.
413-414 (concurring opinion of GOLDBERG, J.). This
approach to the requirements of federalism, not unlike that evinced
by the Court in
Henry v. Mississippi, 379 U.
S. 443, apparently leads, in cases like this, to the
conclusion that the way to eliminate friction with state judicial
systems is not to attempt a working harmony, but to override them
altogether.
Although compelled to concur in this decision, I am free to
express the hope that the Court will eventually return to
constitutional paths which, until recently, it has followed
throughout its history.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins,
dissenting.
The petitioner chose not to take the witness stand at his trial
upon a charge of first-degree murder in a California court. Article
I, § 13, of the California Constitution establishes a defendant's
privilege against self-incrimination, and further provides:
"[I]n any criminal case, whether the defendant testifies or not,
his failure to explain or to deny by his testimony any evidence or
facts in the case against him may be commented upon by the court
any by counsel, and may be considered by the court or the
jury."
In conformity with this provision, the prosecutor, in his
argument to the jury, emphasized that a person accused of crime in
a public forum would ordinarily deny or explain the evidence
against him if he truthfully could do so. [
Footnote 2/1] Also in conformity with this California
constitutional
Page 380 U. S. 618
provision, the judge instructed the jury in the following
terms:
"It is a constitutional right of a defendant in a criminal trial
that he may not be compelled to testify. Thus, whether or not he
does testify rests entirely in his own decision. As to any evidence
or facts against him which the defendant can reasonably be expected
to deny or explain because of facts within his knowledge, if he
does not testify, or if, though he does testify, he fails to deny
or explain such evidence, the jury may take that failure into
consideration as tending to indicate the truth of such evidence and
as indicating that, among the inferences that may be reasonably
drawn therefrom, those unfavorable to the defendant are the more
probable. In this connection, however, it should be noted that, if
a defendant does not have the knowledge that he would need to deny
or to explain any certain evidence against him, it would be
unreasonable to draw an inference unfavorable to him because of his
failure to deny or explain such evidence. The failure of a
defendant to deny or explain evidence against him does not create a
presumption of guilt or, by itself, warrant an inference of guilt,
nor does it relieve the prosecution of its burden of proving every
essential element of the crime and the guilt of the defendant
beyond a reasonable doubt."
The jury found the petitioner guilty as charged, and his
conviction was affirmed by the Supreme Court of California.
[
Footnote 2/2]
Page 380 U. S. 619
No claim is made that the prosecutor's argument or the trial
judge's instructions to the jury in this case deprived the
petitioner of due process of law as such. This Court long ago
decided that the Due Process Clause of the Fourteenth Amendment
does not, of its own force, forbid this kind of comment on a
defendant's failure to testify.
Twining v. New Jersey,
211 U. S. 78;
Adamson v. California, 332 U. S. 46. The
Court holds, however, that the California constitutional provision
violates the Fifth Amendment's injunction that no person"shall be
compelled in any criminal case to be a witness against himself," an
injunction which the Court less than a year ago for the first time
found was applicable to trials in the courts of the several
States.
With both candor and accuracy, the Court concedes that the
question before us is one of first impression here. [
Footnote 2/3] It is a question which has
not arisen before, because, until last year, the self-incrimination
provision of the Fifth Amendment had been held to apply only to
federal proceedings, and, in the federal judicial system, the
matter has been
Page 380 U. S. 620
covered by a specific Act of Congress which has been in effect
ever since defendants have been permitted to testify at all in
federal criminal trials. [
Footnote
2/4]
See Bruno v. United States, 308 U.
S. 287;
Wilson v. United States, 149 U. S.
60;
Adamson v. California, supra.
We must determine whether the petitioner has been "compelled . .
. to be a witness against himself." Compulsion is the focus of the
inquiry. Certainly, if any compulsion be detected in the California
procedure, it is of a dramatically different and less palpable
nature than that involved in the procedures which historically gave
rise to the Fifth Amendment guarantee. When a suspect was brought
before the Court of High Commission or the Star Chamber, he was
commanded to answer whatever was asked of him, and subjected to a
far-reaching and deeply probing inquiry in an effort to ferret out
some unknown and frequently unsuspected crime. He declined to
answer on pain of incarceration, banishment, or mutilation. And if
he spoke falsely, he was subject to further punishment. Faced with
this formidable array of alternatives, his decision to speak was
unquestionably coerced. [
Footnote
2/5]
Those were the lurid realities which behind enactment of the
Fifth Amendment, a far cry from the subject matter of the case
before us. I think that the Court in this case stretches the
concept of compulsion beyond all reasonable bounds, and that
whatever compulsion may exist derives from the defendant's choice
not to testify, not from any comment by court or counsel. In
support of its conclusion that the California procedure does compel
the accused to testify, the Court has only this to say: "It is a
penalty imposed by courts for exercising a constitutional
privilege. It cuts down on the privilege by making its assertion
costly." Exactly what the penalty
Page 380 U. S. 621
imposed consists of is not clear. It is not, as I understand the
problem, that the jury becomes aware that the defendant has chosen
not to testify in his own defense, for the jury will, of course,
realize this quite evidence fact, even though the choice goes
unmentioned. Since comment by counsel and the court does not compel
testimony by creating such an awareness, the Court must be saying
that the California constitutional provision places some other
compulsion upon the defendant to incriminate himself, some
compulsion which the Court does not describe and which I cannot
readily perceive.
It is not at all apparent to me, on any realistic view of the
trial process, that a defendant will be at more of a disadvantage
under the California practice than he would be in a court which
permitted no comment at all on his failure to take the witness
stand. How can it be said that the inferences drawn by a jury will
be more detrimental to a defendant under the limiting and carefully
controlling language of the instruction here involved than would
result if the jury were left to roam at large with only its
untutored instincts to guide it, to draw from the defendant's
silence broad inferences of guilt? The instructions in this case
expressly cautioned the jury that the defendant's failure to
testify "does not create a presumption of guilt or by itself
warrant an inference of guilt"; it was further admonished that such
failure does not "relieve the prosecution of its burden of
providing every essential element of the crime," and, finally, the
trial judge warned that the prosecution's burden remained that of
proof "beyond a reasonable doubt." Whether the same limitations
would be observed by a jury without the benefit of protective
instructions shielding the defendant is certainly open to real
doubt.
Moreover, no one can say where the balance of advantage might
lie as a result of the attorneys' discussion of the matter. No
doubt the prosecution's argument will seek to encourage the drawing
of inferences unfavorable to the
Page 380 U. S. 622
defendant. However, the defendant's counsel equally has an
opportunity to explain the various other reasons why a defendant
may not wish to take the stand, and thus rebut the natural if
uneducated assumption that it is because the defendant cannot
truthfully deny the accusations made.
I think the California comment rule is not a coercive device
which impairs the right against self-incrimination, but rather a
means of articulating and bringing into the light of rational
discussion a fact inescapably impressed on the jury's
consciousness. The California procedure is not only designed to
protect the defendant against unwarranted inferences which might be
drawn by an uninformed jury; it is also an attempt by the State to
recognize and articulate what it believes to be the natural
probative force of certain facts. Surely no one would deny that the
State has an important interest in throwing the light of rational
discussion on that which transpires in the course of a trial, both
to protect the defendant from the very real dangers of silence and
to shape a legal process designed to ascertain the truth.
The California rule allowing comment by counsel and instruction
by the judge on the defendant's failure to take the stand is hardly
an idiosyncratic aberration. The Model Code of Evidence, and the
Uniform Rules of Evidence both sanction the use of such procedures.
[
Footnote 2/6] The practice has
been endorsed by resolution of the American Bar Association and the
American Law Institute, [
Footnote
2/7] and has the support of the weight of scholarly opinion.
[
Footnote 2/8]
Page 380 U. S. 623
The formulation of procedural rules to govern the administration
of criminal justice in the various States is properly a matter of
local concern. We are charged with no general supervisory power
over such matters; our only legitimate function is to prevent
violations of the Constitution's commands. California has honored
the constitutional command that no person shall "be compelled in
any criminal case to be a witness against himself." The petitioner
was not compelled to testify, and he did not do so. But whenever,
in a jury trial, a defendant exercises this constitutional right,
the members of the jury are bound to draw inferences from his
silence. No constitution can prevent the operation of the human
mind. Without limiting instructions, the danger exists that the
inferences drawn by the jury may be unfairly broad. Some States
have permitted this danger to go unchecked by forbidding any
comment at all upon the defendant's failure to take the witness
stand. [
Footnote 2/9] Other States
have dealt with this danger in a variety of ways, as the Court's
opinion indicates.
Ante, 380
U.S. 609fn2/3|>note 3, at pp.
380 U. S.
611-612. Some might differ, as a matter of policy, with
the way California has chosen to deal with the problem, or even
disapprove of the judge's specific instructions in this case.
[
Footnote 2/10] But, so long as
the constitutional command is obeyed, such matters of state policy
are not for this Court to decide.
I would affirm the judgment.
[
Footnote 2/1]
See the excerpt from the prosecutor's argument quoted
in the Court's opinion,
ante, pp.
380 U. S.
609-610.
[
Footnote 2/2]
60 Cal. 2d
182, 32 Cal. Rptr. 24, 383 P.2d 432. As this case was decided
before
Malloy v. Hogan, 378 U. S. 1, the
California Supreme Court did not give plenary consideration to the
question now before us; however, that court has since upheld the
federal constitutionality of the California comment rule in a
thoroughly reasoned opinion by Chief Justice Traynor.
People v.
Modesto, 62 Cal. 2d
436, 42 Cal. Rptr. 417, 398 P.2d 753.
[
Footnote 2/3]
In the
Adamson case, the present question was not
reached, because the majority ruled that the Fifth Amendment is not
applicable to the States. Mr. Justice Reed's opinion made clear
that the California rule was only assumed to contravene the Fifth
Amendment, "without any intention . . .of ruling upon the issue."
The dissenting opinion of MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS
read the majority opinion as "strongly [implying] that the Fifth
Amendment does not, of itself, bar comment upon failure to
testify," but they considered the case on the majority's
assumption, thereby giving no approval to that assumption, even in
dictum. That no such approval was given by this dissenting opinion
is further made evident by the fact that Mr. Justice Murphy and Mr.
Justice Rutledge, also in dissent, felt it necessary to make what
they characterized as an "addition," an expression of their view
that the guarantee against self-incrimination had been violated in
the case. Mr. Justice Frankfurter, in concurring, also indicated
that he was prepared to agree that the Fifth Amendment barred
comment, thus bringing to three the members of the Court who, in
dicta, took the view embraced by the Court today.
[
Footnote 2/4]
20 Stat. 30, as amended, now 18 U.S.C. § 3481.
[
Footnote 2/5]
See generally 8 Wigmore, Evidence § 2250 (McNaughton
rev. ed. 1961).
[
Footnote 2/6]
Model Code of Evidence, Rule 201 (1942); Uniform Rules of
Evidence, Rule 23(4) (1953).
[
Footnote 2/7]
56 A.B.A.Rep. 137-159 (1931); 59 A.B.A.Rep. 130-141 (1934); 9
Proceedings A.L.I. 202, 203 (1931).
[
Footnote 2/8]
See Bruce, The Right to Comment on the Failure of the
Defendant to Testify, 31 Mich.L.Rev. 226; Dunmore, Comment on
Failure of Accused to Testify, 26 Yale L.J. 464; Hadley, Criminal
Justice in America, 11 A.B.A.J. 674, 677; Hiscock, Criminal Law and
Procedure in New York, 26 Col.L.Rev. 253, 258-262; Note, Comment on
Defendant's Failure to Take the Stand, 57 Yale L.J. 145.
[
Footnote 2/9]
See, e.g., State v. Pearce, 56 Minn., 226, 57 N.W. 652,
1065;
Tines v. Commonwealth, 77 S.W. 363, 25 Ky.L.Rep.
1233;
Hanks v. Commonwealth, 248 Ky. 203, 58 S.W.2d
394.
[
Footnote 2/10]
It should be noted that the defendant's counsel did not request
any additions to the instructions which would have brought but
other possible reasons which might have influenced the defendant's
decision not to become a witness. The California Constitution does
not, in terms, prescribe what form of instruction should be given,
and the petitioner has not argued that another form would have been
denied.