mitchell argued december decided april petitioner pleaded guilty federal charges conspiring distribute five kilograms cocaine distributing cocaine reserved right contest sentencing drug quantity attributable conspiracy count accepting plea district made inquiries required federal rule criminal procedure told petitioner faced mandatory minimum year prison distributing cocaine minimum conspiracy government show required kilograms explained pleading guilty waiving inter alia right trial remain silent indicating done proffered conduct petitioner confirmed guilty plea sentencing hearing three codefendants testified sold ounces cocaine twice week years another person testified petitioner sold two ounces cocaine petitioner put evidence argued reliable evidence showed sold two ounces cocaine district ruled consequence petitioner guilty plea right remain silent crime details found codefendants testimony put threshold thus mandating minimum noted failure testify factor persuading rely codefendants testimony third circuit affirmed held federal criminal system guilty plea waive privilege sentencing pp rule witness single proceeding may testify voluntarily subject invoke privilege questioned details justified fact witness may pick choose aspects particular subject discuss without casting doubt statements trustworthiness diminishing factual inquiry integrity privilege waived matters witness testifies waiver scope determined scope relevant brown concerns justifying trial absent plea colloquy protects defendant unintelligent involuntary plea convincing reason narrow inquiry stage entail extensive waiver privilege defendant takes stand reasonably claim immunity matter put dispute defendant pleads guilty takes matters dispute leaving little danger misled selective disclosure petitioner statement pose threat factfinding proceeding integrity purpose district inquiry simply ensure understood charges factual basis government case rule contemplate broad waiver purpose inform defendant loses forgoing trial elicit waiver privileges exist beyond trial confines treating guilty plea waiver privilege grave encroachment defendants rights allow prosecutors indict without specifying drug quantity obtain guilty plea put defendant stand sentencing fill quantity enlist defendant instrument condemnation undermine long tradition vital principle criminal proceedings rely accusations proved government inquisitions conducted enhance prosecutorial power rogers richmond pp sentence yet imposed already rejected proposition incrimination complete guilt adjudicated see estelle smith proposition applies cases sentence fixed judgment conviction become final see reina sentencing defendant may legitimate fear adverse consequences testimony effort compel testimony sentencing clearly contravene fifth amendment estelle supra estelle capital case reason apply principle noncapital sentencing hearings fifth amendment prevents person compelled criminal case witness maintain sentencing proceedings part criminal case contrary federal rules criminal procedure common sense pp sentencing may draw adverse inference defendant silence determining facts relating circumstances details crime normal rule criminal case permits negative inference defendant failure testify see griffin california sentencing hearing part criminal case concerns mandating rule negative inferences trial apply equal force sentencing holding product griffin also estelle conclusion basis distinguishing criminal case guilt sentencing phases far protection fifth amendment privilege concerned little doubt rule adverse inferences become essential feature nation legal tradition teaching government must prove allegations respecting defendant individual rights expresses opinion questions whether silence bears upon determination lack remorse upon acceptance responsibility offense purposes downward adjustment sentencing guidelines pp reversed remanded kennedy delivered opinion stevens souter ginsburg breyer joined scalia filed dissenting opinion rehnquist thomas joined thomas filed dissenting opinion amanda mitchell petitioner writ certiorari appeals third circuit april justice kennedy delivered opinion two questions relating criminal defendant fifth amendment privilege presented us first whether federal criminal system guilty plea waives privilege sentencing phase case either result colloquy preceding plea operation law plea entered hold plea waiver privilege sentencing second question whether determining facts crime bear upon severity sentence trial may draw adverse inference defendant silence hold sentencing may draw adverse inference petitioner amanda mitchell defendants indicted offenses arising conspiracy distribute cocaine allentown pennsylvania according indictment leader conspiracy harry riddick obtained large quantities cocaine resold drug couriers street sellers including petitioner petitioner charged one count conspiring distribute five kilograms cocaine violation three counts distributing cocaine within feet school playground violation without plea agreement petitioner pleaded guilty four counts reserved right contest drug quantity attributable conspiracy count district advised drug quantity determined sentencing hearing accepting plea district made inquiries required rule federal rules criminal procedure informing petitioner penalties offenses district judge advised range punishment complex know much cocaine government going able show involved app judge told petitioner faced mandatory minimum one year prison distributing cocaine near school playground also faced serious punishment depending quantity involved conspiracy mandatory minimum years prison held responsible least kilograms less kilograms cocaine id pleading guilty district explained petitioner waive various rights including right trial remain silent fifth amendment government explained factual basis charges judge put petitioner oath asked petitioner answered indicated although present one transactions charged substantive cocaine distribution count delivered cocaine customer government maintained liable nevertheless aider abettor delivery another courier discussion counsel petitioner reaffirmed intention plead guilty charges district noted might defense one count theory present aid abet transaction petitioner confirmed intention plead guilty district accepted plea nine petitioner original codefendants went trial three pleaded guilty agreed cooperate government testified petitioner regular seller ringleader riddick petitioner sentencing hearing three adopted trial testimony one furnished additional information amount cocaine petitioner sold according petitioner worked two three times week selling ounces cocaine day april august august december worked three five times week january march one charge cocaine distribution riddick codefendant conceded seen petitioner regular basis relevant period petitioner government referred trial testimony one alvitta mack made series drug buys supervision law enforcement agents including three purchases petitioner totaling two ounces cocaine petitioner put evidence sentencing testify rebut government evidence drug quantity counsel argued however three documented sales mack constituted evidence sufficient reliability credited determining quantity cocaine attributable sentencing purposes testimony sentencing hearing district ruled consequence guilty plea petitioner right remain silent respect details crimes found credible testimony indicating petitioner drug courier regular basis sales ounces twice week year half put threshold thus mandating minimum sentence years one things persuading rely testimony codefendants petitioner testifying contrary app district judge told petitioner held come forward today tell really couple times taking position come forward explain side counsel taking position fifth amendment right determined higher right regard willing bring back resentencing might take closer look codefendants testimony district sentenced petitioner statutory minimum years imprisonment years supervised release special assessment appeals third circuit affirmed sentence according appeals voluntarily knowingly pleading guilty offense mitchell waived fifth amendment privilege id acknowledged circuits held witness claim fifth amendment privilege testimony might used enhance sentence id citing garcia cert denied said rule withstand analysis thought illogical fragment sentencing process retaining privilege one components crime waiving others ibid petitioner reservation right contest amount drugs attributable change analysis appeals view mitchell opened full range possible sentences told plea colloquy penalty conspiring distribute cocaine maximum life imprisonment reservation may put government proof amount drugs declination testify issue properly held ibid acknowledged defendant may plead guilty retain privilege respect crimes observed mitchell claim implicated crimes testifying sentencing hearing retried state offense ibid citing cons stat statute bars certain exceptions state prosecution following federal conviction based conduct judge michel concurred reasoning error district drawing adverse factual inference petitioner silence harmless evidence amply supported judge finding quantity even without consideration petitioner failure testify circuits confronted issue held defendant retains privilege sentencing see kuku garcia de la cruz hernandez bank one cleveland abbe lugg cadc paris granted certiorari resolve apparent circuit conflict created appeals decision reverse ii government maintains petitioner guilty plea waiver privilege compelled respect crimes comprehended plea hold otherwise rule petitioner retained privilege sentencing hearing well established witness single proceeding may testify voluntarily subject invoke privilege questioned details see rogers privilege waived matters witness testifies scope waiver determined scope relevant brown witness certainly party determines area disclosure therefore inquiry nice questions arise course extent initial testimony whether ensuing questions comprehended within scope suffices note general rule justifications rule waiver testimonial context evident witness may pick choose aspects particular subject discuss without casting doubt trustworthiness statements diminishing integrity factual inquiry noted rogers contrary rule open way distortion facts permitting witness select stopping place testimony said brown make fifth amendment humane safeguard judicially coerced positive invitation mutilate truth party offers tell illogic allowing witness offer testimony obvious even witness unfairness allowing testimony given without invoking privilege may assume purposes opinion petitioner pleaded guilty taken stand trial testified frequency drug deliveries quantity cocaine involved concerns justify defendant testifies absent plea colloquy however purpose plea colloquy protect defendant unintelligent involuntary plea government turn constitutional shield prosecutorial sword defendant relinquish rights compelled upon entry guilty plea including right remain silent sentencing convincing reason narrow inquiry plea colloquy entail extensive waiver privilege unlike defendant taking stand reasonably claim fifth amendment gives immunity matters put dispute defendant pleads guilty puts nothing dispute regarding essentials offense rather defendant takes matters dispute often making joint statement prosecution confirming prosecution version facts circumstances little danger misled selective disclosure respect guilty plea like offer stipulate decision take stand petitioner statement done proffered conduct pose threat integrity factfinding proceedings purpose district inquiry simply ensure petitioner understood charges factual basis government case federal rule criminal procedure governs pleas contemplate broad waiver government envisions rule directs district accepting guilty plea ascertain defendant understands giving right tried jury trial right compelled rule transcript plea colloquy case discloses district took care comply provisions rule district correctly instructed petitioner right trial remain silent fifth amendment option take stand tell jury side controversy plead guilty trial rights gone app neither rule district explication indicates defendant consents take stand sentencing phase suffer adverse consequences declining rule district admonition effect entry plea petitioner surrender right trial invoke privilege trial warning brought home petitioner also waiving right sentencing purpose rule inform defendant loses forgoing trial elicit waiver privilege proceedings still follow waiver right trial attendant privileges waiver privileges exist beyond confines trial course may discharge duty ensuring factual basis plea question ing defendant oath record presence counsel offense defendant pleaded rule question authority district make whatever inquiry deems necessary sound discretion assure defendant pressured offer plea factual basis defendant withholds information invoking privilege plea colloquy runs risk district find factual basis inadequate least plea accepted statements admissions made preceding plea colloquy later admissible defendant plea statement admissible defendant however necessarily waiver privilege rule prevent defendant relying upon privilege sentencing treating guilty plea waiver privilege sentencing grave encroachment rights defendants oral argument asked counsel whether facts case government reliable evidence amount drugs involved prosecutor say well ca prove like put stand see ca get admit tr oral arg counsel answered waiver analysis put forward suggests least facts surrounding conspiracy admitted government ibid federal criminal defendants whose cases dismissed enter pleas guilty nolo contendere dept justice bureau justice statistics sourcebook criminal justice statistics ed accept government position prosecutors indict without specifying quantity drugs involved obtain guilty plea put defendant stand sentencing fill drug quantity result enlist defendant instrument condemnation undermining long tradition vital principle criminal proceedings rely accusations proved government inquisitions conducted enhance prosecutorial power rogers richmond urs accusatorial inquisitorial system reject position either petitioner guilty plea statements plea colloquy functioned waiver right remain silent sentencing centerpiece third circuit opinion idea entry guilty plea completes incrimination defendant thus extinguishing privilege sentence yet imposed however already rejected proposition incrimination complete guilt adjudicated estelle smith reject today appeals cited wigmore evidence proposition upon conviction criminality ceases criminality privilege citing wigmore evidence mcnaughton rev passage relied upon support third circuit narrow view privilege full passage follows legal criminality consists liability law punishment liability removed criminality ceases criminality privilege ibid argued liability punishment continues sentence imposed privilege even appeals interpretation treatise correct however means privilege ceases upon conviction sentencing respond suggested rule simply wrong later supplement treatise indeed proper rule lthough witness pleaded guilty crime charged sentenced constitutional privilege remains unimpaired wigmore evidence best ed supp true general rule incrimination basis assertion privilege conclude principle applies cases sentence fixed judgment conviction become final see reina adverse consequences visited upon convicted person reason testimony incrimination feared sentence yet imposed defendant may legitimate fear adverse consequences testimony stated estelle effort state compel defendant testify sentencing hearing clearly contravene fifth amendment estelle capital case find reason apply principle noncapital sentencing hearings well essence basic constitutional principle requirement state proposes convict punish individual produce evidence independent labor officers simple cruel expedient forcing lips emphasis original quoting culombe connecticut government makes implicit concession acceptance guilty plea eliminate possibility incrimination brief government acknowledges defendant awaits sentencing pleaded guilty may assert privilege called witness trial codefendant part danger responding questions might adverse impact sentence prosecution crimes brief fifth amendment terms prevents person compelled criminal case witness amdt maintain sentencing proceedings part criminal case contrary law common sense law federal rules criminal procedure must impose sentence judgment conviction issue see rule judgment conviction must set forth plea sentence cf mempa rhay common sense appears case often true criminal justice system defendant less concerned proof guilt innocence severity punishment petitioner faced imprisonment one year upwards life depending circumstances crime say right remain silent instead compelled cooperate deprivation liberty ignore fifth amendment privilege precise stage point view important rule applicable whether sentencing hearing deemed proceeding separate rule hearing issue need resolve iii government suggests even petitioner retained unwaived privilege sentencing phase case district entitled based silence draw adverse inference regard amount drugs attributable brief normal rule criminal case negative inference defendant failure testify permitted griffin california decline adopt exception sentencing phase criminal case regard factual determinations respecting circumstances details crime recognized prevailing rule fifth amendment forbid adverse inferences parties civil actions refuse testify response probative evidence offered baxter palmigiano least refusal waive privilege lead automatically without imposition sanctions lefkowitz cunningham ordinary civil cases party confronted invocation privilege opposing side capacity avoid say offering immunity prosecution rule allowing invocation privilege though risk suffering adverse inference even default accommodates right witness oneself still permitting civil litigation proceed another reason treating civil criminal cases differently stakes higher criminal cases liberty even life may stake government sole interest convict baxter baxter involved state prison disciplinary proceedings noted criminal proceedings involve correctional process important state interests conviction crime id cf ohio adult parole authority woodard adverse inference permissible silence clemency proceeding nonjudicial process part criminal case unlike prison disciplinary proceeding sentencing hearing part criminal case explicit concern privilege accordance text fifth amendment must accord privilege protection sentencing phase criminal case due trial phase case see griffin supra concerns mandate rule negative inferences criminal trial apply equal force sentencing without question stakes high inference drawn district petitioner silence may resulted decades added imprisonment government often motive demand severe sentence central purpose privilege protect defendant unwilling ment condemnation remains vital importance holding today product existing precedent griffin also estelle smith discern basis distinguish guilt penalty phases respondent capital murder trial far protection fifth amendment privilege concerned although estelle capital case reasoning applies full force government seeks use petitioner silence infer commission disputed criminal acts see supra say adverse factual inference may drawn silence sentencing hearing held determine specifics crime confine griffin ignoring estelle unwilling truncate precedents way rule adverse inferences defendant silence criminal proceedings including sentencing proven utility years ago expressed concern oo many even better advised view privilege shelter wrongdoers readily assume invoke either guilty crime commit perjury claiming privilege ullmann later quoted apparent approval wigmore observation layman natural first suggestion probably resort privilege instance clear confession crime lakeside oregon quoting wigmore evidence mcnaughton rev far clear citizens jurors remain today skeptical principle often willing ignore prohibition adverse inferences silence principles unsettled find general wide acceptance legal culture little doubt rule prohibiting inference guilt defendant rightful silence become essential feature legal tradition process began even griffin griffin considered allow prosecutor invite jury make adverse inference defendant refusal testify trial see griffin supra rule adverse inferences vital instrument teaching question criminal case whether defendant committed acts accused question whether government carried den prove allegations respecting defendant individual rights government retains burden proving facts relevant crime sentencing phase enlist defendant process expense privilege whether silence bears upon determination lack remorse upon acceptance responsibility purposes downward adjustment provided sentencing guidelines separate question us express view holding petitioner silence determining facts offense sentencing hearing district imposed impermissible burden exercise constitutional right compelled judgment appeals reversed case remanded proceedings consistent opinion ordered amanda mitchell petitioner writ certiorari appeals third circuit april justice scalia chief justice justice justice thomas join dissenting agree mitchell right invoke fifth amendment privilege sentencing phase criminal case view however right sentencer abstain making adverse inferences reasonably flow failure testify therefore respectfully dissent fifth amendment provides person shall compelled criminal case witness original matter seem threat adverse inference compel anyone testify one natural governmentally imposed consequences failing testify factfinder increased readiness believe incriminating testimony defendant chooses contradict consequences assuredly cons rather pros testify testify calculus compel anyone take stand indeed imagine instances guilty defendant choose remain silent despite adverse inference theory less damage testimony despite text held griffin california impermissible prosecutor judge comment defendant refusal testify called penalty imposed defendant exercise privilege ibid stop holding carter kentucky judge must defendant asks instruct jury may sua sponte consider defendant silence evidence guilt majority muses rule found wide acceptance legal culture even become essential feature legal tradition ante although latter assertion strikes hyperbolic former may true adequate reason overrule cases course way propose adequate reason however extend cases areas yet apply since neither logic history marshaled defense illogic griffin line plain runs exactly counter normal evidentiary inferences ask son whether saw movie forbidden watch remains silent import silence clear indeed occasions recognized significance silence saying ailure contest assertion considered evidence acquiescence natural circumstances object assertion question baxter palmigiano quoting hale see also ex rel bilokumsky tod conduct forms basis inference evidence silence often evidence persuasive character history griffin pedigree equally dubious question whether factfinder may draw logical inference criminal defendant failure offer formal testimony arisen evidentiary rules prevented criminal defendant testifying behalf even wanted see generally ferguson georgia say however criminal defendant allowed speak behalf tradition expecting defendant drawing adverse inference strongly suggests griffin sync historical understanding fifth amendment traditionally defendants expected speak rather extensively pretrial trial stages criminal proceeding longstanding principle nemo tenetur seipsum prodere thought ban testimony forced compulsory oath physical torture voluntary unsworn testimony see barlow justice peace treatise containing power duty magistrate pretrial procedure colonial america governed centuries england marian committal statute provided uch justices justice peace person shall brought manslaughter felony suspicion thereof shall commit send prisoner ward shall take examination prisoner information bring fact circumstance thereof much thereof shall material prove felony shall put writing within two days said examination philip mary ch justice peace testified trial content defendant statement defendant refused speak also reported jury langbein privilege common law criminal procedure privilege helmholz et al eds trial defendants expected speak directly jury sir james stephen described english trials follows prisoner cases felony defended counsel therefore speak thus unable say mouth closed contrary mouth open evidence given operated much indirect questioning omitted answer questions suggested likely convicted stephen history criminal law england see also beattie crime courts england pp assumption clear case false prisoner say suggest speak unable deny truth evidence hawkins pleas crown ch ed confirming defendants expected speak defense trial though clear adverse inference silence permitted unable find case adverting inference upholding conviction suggests defendants rarely thought interest remain silent see langbein supra one however seemed think system inconsistent principle nemo tenetur seipsum prodere indication whatever criminal procedure america made abrupt principle ratified fundamental right fifth amendment analogues see moglen privilege british north america colonial period fifth amendment privilege self incrimination supra justices peace continued pretrial questioning suspects whose silence continued introduced trial see fourth report commissioners practice pleadings new york code criminal procedure xxviii complete works edward livingston criminal jurisprudence objection raised pretrial procedure purely statutory ground marian committal statute force new republic see hening virginia justice comprising office authority justice peace ed defendants continued speak trials assistance counsel became common occurred gradually throughout century see beaney right counsel american courts griffin question arise began enacting statutes providing criminal defendants competent testify oath behalf maine first rest federal government eventually followed see wigmore evidence ed although statutes including federal statute contained clause cautioning negative inference drawn defendant failure testify disagreement approach sufficiently widespread late uniform rules evidence drafted national conference commissioners uniform state laws provided accused criminal action testify counsel may comment upon sic accused failure testify trier fact may draw reasonable inferences therefrom uniform rule evidence see also model code evidence rule similar whatever merits prohibiting adverse inferences legislative policy see ante text history fifth amendment give indication federal constitutional prohibition use defendant silence demeanor evidence hardy forebears thought compulsion terms rack oaths forced power law viewed drawing commonsensical inference equivalent pressure implausible americans subject adverse inferences failing give unsworn testimony viewed adverse inference failing give sworn testimony violation fifth amendment reasonably argued new statutes somehow created revised understanding fifth amendment incorporated due process clause fourteenth amendment since nine federal government enacted competency statutes fourteenth amendment adopted three prohibit adverse inferences failure testify decision griffin however even pretend rooted historical understanding fifth amendment rather breathtaking act sorcery simply transformed legislative policy constitutional command quoting passage earlier opinion describing benevolent purposes decreeing literally nothing support words fifth amendment substituted act statute spirit clause reflected imagine constitution mode exegesis generally applied example without evidence prove point simply say federal procedural statutes words fifth amendment substituted act statute spirit due process clause reflected mind griffin wrong turn cause enough overrule cause enough resist extension ii asserts adopt exception griffin sentencing phase criminal case ante characterization asked evidently demanded view text fifth amendment phrase criminal case requires us accord privilege protection sentencing phase due trial phase case ante demonstrably case law long recognized natural dichotomy guilt penalty phases right contained sixth amendment whose guarantees apply criminal prosecutions term indistinguishable present purposes fifth amendment criminal case apply sentencing spaziano florida sixth amendment guarantee defendant right confronted witnesses sentencing judge may consider example reports probation officers psychiatrists without affording see williams new york likewise inapplicable sentencing requirement due process clause prosecution prove essential facts beyond reasonable doubt mcmillan pennsylvania asserts refusing apply griffin truncate holding estelle smith fifth amendment applies sentencing proceedings id contrary indications caselaw however seems quite impossible read estelle holding fifth amendment applies sentencing guilt also precisely scope phases thus question us fairly put whether truncate estelle create exception griffin whether first time extend griffin beyond guilt phase answer question one normally look historical understanding adverse inference constitutional practice since described part practice history help except suggest mistakenly created constitutional right expanded consistency areas jurisprudence points direction permitted adverse inferences drawn silence consequence denial clemency see ohio adult parole authority woodard imposition punishment violation prison rules see baxter palmigiano even deportation see ins citing ex rel bilokumsky tod reason increased punishment defendant exposed sentencing phase completed criminal trial treated differently unless theory guilt sentencing phases form one inseparable criminal case refuted might add despite broad dicta quotes estelle majority really believe guilt sentencing phases unified whole else leave open possibility sentencing guideline escapes ban negative inferences ante brings greatest bizarre inconsistency combination rule adopts today balance jurisprudence relating sentencing particular ourts country england said practiced policy sentencing judge exercise wide discretion sources types evidence used assist determining kind extent punishment imposed within limits fixed law williams new york supra sentencing judge may appropriately conduct inquiry broad scope largely unlimited either kind information may consider source may come nichols quoting tucker facts available sentencing judge observed relevant likelihood defendant transgress hope may respond rehabilitative efforts assist lawful future career degree deem war defendant willingness cooperate roberts see also limitation shall placed information concerning background character conduct person convicted offense may receive consider purpose imposing appropriate sentence today opinion inconspicuous manner possible end analysis one imagines statement delivered orally spoken low voice hand mouth holding applies inferences drawn silence determining facts offense ante whether silence bears upon determination lack remorse upon acceptance responsibility purposes downward adjustment provided sentencing guidelines separate question majority expresses view ibid never mind said albeit dicta doubt principled distinction may drawn enhancing punishment imposed upon petitioner denying leniency claims appropriate cooperated roberts supra course clutter swept rug limiting opinion determining facts offense merely application today opinion application determinations acceptance responsibility repentance character future dangerousness federal state prosecutions say probably bulk sentencing ultimately decides fullness time decent period confusion lower courts inference rule indeed limited determining facts offense system state increase sentence convicted drug possessor refuses say many ounces possessed suggests possessed larger amount make inference unconstitutional refusal cooperate suggests unrepentant apart fact logical basis drawing line within sentencing phase whereas drawing line guilt sentencing entirely logical result produced provides new support bumble renowned evaluation law sensible feature almost always unenforceable since ordinarily impossible tell whether sentencer used silence either purpose neither hand ultimately decides fullness time decent period confusion lower courts extension griffin announced today limited determining facts offense created system give sentencing judge access sorts evidence including remote hearsay concerning character defendant prior misdeeds acceptance responsibility determination mend ways declare taboo obvious piece evidence standing front judge defendant refusal cooperate rule orders judge avert eyes elephant courtroom judge job size elephant patent inadequacy courses regard determining matters facts offense finessed simply resolving time choose sooner later choice must made fact alternatives unsatisfactory cries extension griffin mistake asserts rule adverse inferences silence even sentencing proceedings proven utility ante significantly however utility proceeds describe vital instrument teaching jurors question criminal case whether defendant committed acts accused rather whether government carried burden prove allegations utility bearing upon sentencing indeed even upon usual sentenc er judge rather jury though fifth amendment protects mitchell compelled take stand also protects held adverse inferences drawn silence guilt phase trial reason must also shield natural appropriate consequences uncooperativeness sentencing stage respectfully dissent amanda mitchell petitioner writ certiorari appeals third circuit april justice thomas dissenting ustice calia dissenting opinion persuasively demonstrates decision griffin california lacks foundation constitution text history logic vacuousness griffin supplies cause enough resist extension ante view also illustrates griffin progeny including carter kentucky reexamined justice scalia notes illogic griffin line plain historical pedigree equally dubious ante griffin fail withstand proper constitutional analysis rests unsound assumption griffin relied partly premise comments defendant silence inferences drawn therefrom penalized exercise fifth amendment privilege see griffin supra carter supra dissenting justices griffin rightly observed comments inferences truly penalize defendant see stewart joined white dissenting exactly penalty imposed consists clear must saying california constitutional provision places compulsion upon defendant incriminate compulsion describe readily perceive prosecutorial comments defendant decision remain silent trial surely impose greater penalty defendant threats indict serious charges chooses enter plea bargain practice previously validated see bordenkircher hayes finding due process violation plea negotiations presented defendant unpleasant alternatives forgoing trial facing charges plainly subject prosecution moreover penalty lacks constitutional significance since explicit constitutional guarantee fully honored defendant compelled witness amdt merely jury told may draw adverse inference failure testify see griffin supra stewart joined white dissenting comment counsel compel testimony creating awareness defendant decision testify carter supra powell concurring nothing clause requires jurors draw logical inferences defendant chooses explain incriminating circumstances therefore bottom griffin constitutionalizes policy choice majority found desirable time carter compounded error sort undertaking exercise constitutional interpretation act judicial willfulness logical stopping point see carter supra ehnquist dissenting thomistic reasoning carried constitutional provision griffin case present case stop one know previously recognized stare decisis weakest interpret constitution interpretation altered constitutional amendment overruling prior decisions agostini felton given indefensible foundations willing reconsider griffin carter appropriate case purposes case asks whether principle established griffin extended agree fifth amendment prohibit sentencer drawing adverse inference defendant failure testify therefore join ustice calia dissent footnotes statutes prohibiting adverse inference mass acts ch laws nev ch xviii ohio leg acts laws ch xcvi laws ch lxx statutes prohibiting adverse inference acts ch cal ch dcxliv acts even trial might note held adverse inference rule absolute one year griffin california say miranda arizona defendant postarrest silence introduced substantive evidence trial id dictum also held fifth amendment permits defendant impeached prearrest silence jenkins anderson postarrest silence fletcher weir per curiam later takes stand criminal trial also recognized vitality griffin rule testifying defendant may impeached refusal take stand prior trial jenkins supra recognizing vitality raffel footnotes also agree ustice calia ante griffin improperly relied prior decision interpreting federal statute inform resolution constitutional question error later repeated carter see griffin carter