Griffin v. California/Concurrence Harlan

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, 84 S.Ct. 1489, 12 L.Ed.2d 653, that the Fifth Amendment applies 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. State of Texas, 380 U.S. 400. at 408, 85 S.Ct. 1065, at 1070.

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, this page, fully demonstrates that the nocomment rule 'might be lost, and justice still be done,' Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. As a 'non-fundamental' part of the Fifth Amendment (cf. my opinion concurring in the result in Pointer, 380 U.S., at 409, 85 S.Ct. at 1070), 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, 378 U.S. at      11, 84 S.Ct. at 1495. (Emphasis added.)

My answer then (378 U.S., at 27, 84 S.Ct. at 1503) 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 intende 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. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, and Palko v. State of 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. State of Texas, 380 U.S. at 413-414, 85 S.Ct., at 1073 (concurring opinion of Goldberg, J.). This approach to the requirements of federalism, not unlike that evinced by the Court in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, 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.