It may have been  too easy to glom off Kris Kristofferson’s Me and Bobby Magee, but  there  were  plenty who cried that  Salinas v. Texas was the death knell of the right to remain silent.  I hate to be contrary, but while Salinas did great harm, never underestimate the potential for things to get worse. Much, much worse. 

At PrawfsBlawg, Stanford law’s  Will Baude takes up where Clarence Thomas’ concurrence, with some Nino love thrown in, leaves off.

Earlier this week, I mentioned as an aside that I appreciated Justice Thomas’s call to overrule Griffin v. California (which forbids judicial and prosecutorial comment on a defendant’s exercise of his right not to testify).  I don’t have anything terribly profound to say about why, but since that view seemed to surprise and displease some people, I thought I’d say more about my thinking.

First, Griffin is probably wrong.  As Justices Thomas and Scalia discuss in their separate dissents in Mitchell v. United States, there’s little reason to believe that the no-commenting-on-defendants’-silence rule has a historical basis, nor is it a straightforward reading of the text of the Fifth Amendment.  

You read that right, that Baude contends that the Constitution should not prohibit the prosecutor from commenting on the defendant’s failure to testify. He goes on:

Second, the system would probably be more legitimate– and might even be more accurate– if defendants testified more.  The current incentives are rigged to discourage defendants from testifying– even defendants who have something they’d like to say.  Nobody can comment on the defendants’ failure to testify, and if the defendant does testify, prior convictions or other damaging impeachment evidence can come in. (See.)  Ideally, I’d scrap the Griffin rule and the use of prior convictions for impeachment as a package, but even scrapping one or the other would be an improvement.

While insulating defendants from cross for prior convictions and impeachment in order to enable more defendants to testify offers an element of balance, it’s not the only reason why defendants don’t testify. Indeed, it’s not the primary reason.

Defendants suck at testifying. They aren’t schooled in the art, like cops, and they aren’t usually selected for prosecution because of their intelligence or public speaking abilities. They may be a bomb waiting to explode, or so easily confused and manipulated as to be a disaster on cross. No amount of prep can change a lifetime of stupidity or bad attitude. But that doesn’t make them guilty, just horrible witnesses.

Others don’t speak English well, and use of a translator has myriad problems. Still others suffer from mental illness or intellectual limitations. And some use drugs, despite our best efforts to persuade them otherwise, and there is nothing uglier than a junkie on the stand an hour past his fix.

Even the smart ones, the well-educated white collar guys, without negative priors but a laundry list of charitable acts, blow it on the stand. They tend not to like to be cornered by lawyers, and react poorly when not treated with the respect they think they’re due. And juries don’t like it when they spit back at questions. In fact, they hate it, and hate them for doing it. And yet they do it all the time.

But Baude has more:

Third, I don’t think it makes much sense for the Constitution to regulate most of [what] prosecutors say during opening and closing argument.  Criminal cases are full of litigation about various kinds of improper comments and prosecutorial misconduct for the things prosecutors tell the jury, and the whole enterprise strikes me as misguided (with the exception of statements that describe inadmissible evidence).  The prosecutor’s comments are not the law.  The defense attorney can disagree with them.

This is where he demonstrates that he is utterly, insufferably clueless about trial. Even as it now stands, with prosecutors prohibited from commenting on the defendant’s failure to testify and judges instructing the jury that they may draw no negative inference,  there is no jury that isn’t influenced by the defendant’s failure to testify.  None. Ever. The only question is whether the defense can surmount this overwhelming bias.

But Baude is dead wrong when he asserts that the defense attorney can disagree with the prosecutor’s argument that the failure to testify is due to guilt. Try a case, Will, and see what happens.

The prosecutor’s argument is easy.

The defendant had the right to testify, to tell you, ladies and gentlemen of the jury, that he didn’t do it. He chose not to. What does that tell you?

And what does the defense lawyer say in response? That the defendant has a constitutional right not to testify? Oh yeah, that’s persuasive. He can’t argue that the defendant would make a miserable witness, is too dumb or argumentative, has a lousy attitude, needs a fix? 

There is no evidence in the record, nor could there be, as to what legitimate reasons could motivate a defendant to not testify. The defense can’t argue evidence that doesn’t exist. He’s screwed.

Griffin is such a fundamentally critical protection of the defendant’s Fifth Amendment right that it would be unthinkable, inconceivable, to try a case without it. If the failure to testify, not merely to answer questions, could be used against the defendant, he would be absolutely compelled to testify no matter what problems that would cause, because the failure to do so would be a guarantee of conviction. The jury bias would be overwhelming, and anyone who thinks otherwise is dead wrong.

So the end of Griffin would create the law’s version of Heller’s Catch-22, failure to testify assuring conviction and testifying being a likely disaster. Of course, given that the current state of affairs is so incredibly favorable to defendants, with a 97% conviction rate, why not argue for the death of Griffin to level the playing field and make sure that no one walks away?  Never forget that things can always get worse, and Baude’s contention would clearly take us deep into Griffin-22 territory.