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The same standards must determine whether an accused's silence in either a federal or state proceeding is justified. 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.
In a prosecution resulting in a murder conviction in the Superior Court of Los Angeles County, California, the failure of the petitioner to testify was commented upon by the prosecuting attorney and, in its instructions, by the court. Both the prosecuting attorney and the court acted pursuant to Article I, 13 of the California Constitution, which provided that in any criminal case, whether defendant testified or not, his failure to explain or 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. On appeal from the conviction, the Supreme Court of California affirmed. Petitioner appealed the decision, seeking consideration of whether a comment on petitioner's failure to testify during the trial on the issue of guilt violated the Self-Incrimination Clause of U.S. Const. amend. V.
Did the “comment rule,” as approved by the California Constitution, violate the Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution?
The Supreme Court reversed the decision of a state supreme court because it found that the comment rule, approved by the state, violated U.S. Const. amend. V. The Court found that the comment on the refusal to testify was a remnant of the inquisitorial system of criminal justice that U.S. Const. amend. V outlawed. The state's comment rule was in substance a rule of evidence that allowed the state the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof was made as in other situations, but the prosecutor's comment and the court's acquiescence were the equivalent of an offer of evidence and its acceptance.