The No-Inference Instruction

The No-Inference Instruction

The no-comment rule of Griffin restrains what the state's own actors may say: neither the prosecutor nor the judge may invite jurors to count a defendant's silence as evidence of guilt.¹ That rule leaves open what the state owes a defendant whose silence the jurors will notice anyway. The question reached the Court in Carter v. Kentucky, and its facts show why a defendant might want help. A patrol officer in Hopkinsville, Kentucky, flashed a spotlight down an alley and saw two men stooped beside a hardware store; the men ran, and a second officer chased one of them, Lonnie Joe Carter, who dropped a gym bag and a radio tuned to a police band before being stopped while wearing gloves but no jacket.² Back in the alley, the first officer found a hole in the store's wall, two jackets, and merchandise that appeared to have come from the store.³

Carter was indicted for third-degree burglary and also charged as a persistent felony offender on the strength of earlier felony convictions.⁴ Defense counsel conferred with him outside the jury's hearing about the risk that, if he testified, the prosecution could impeach him with those convictions, and Carter decided not to take the stand.⁵ Returning to open court, counsel asked the judge to instruct the jury: "The [defendant] is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way."⁶ The trial judge refused, and the Kentucky Supreme Court found no error.⁷ Carter's position is the common one for a defendant with a record. Staying off the stand keeps the prior convictions from the jury, yet it leaves the jurors looking at a defendant who never answered the state's evidence, with no one to tell them what they may do with that observation.

The Court reached its holding by way of Lakeside v. Oregon. There the trial judge gave a no-inference instruction even though defense counsel complained that his strategy was to avoid any mention of his client's failure to testify, and the Court held that giving the instruction over that objection did not violate the Constitution.⁸ The reasoning was that the Fifth and Fourteenth Amendments bar only adverse comment, so a judge's direction that jurors must draw no adverse inference of any kind is "comment" of an entirely different order, one whose purpose is to remove unspoken adverse inferences from the jury's deliberations.⁹ Lakeside therefore established that a no-inference instruction cannot supply the pressure Griffin condemned. It did not decide the mirror-image question, which is whether the judge must give the instruction when the defendant is the one asking for it.

Carter answered that question by extending Griffin to a case with no comment at all. The Court read Griffin to mean that a defendant must pay "no court-imposed price for the exercise of his constitutional privilege not to testify."¹⁰ In Griffin the price was adverse comment, but the Court reasoned that the penalty may be just as severe when no one comments and the jury is left to draw broad inferences of guilt from the silence using only its untutored instincts.¹¹ The mechanism is easy to trace. Jurors who watch a defendant say nothing in the face of an accusation will wonder why, and many people assume that an innocent person would have spoken; the Court drew on the observation that too many view the privilege as a shelter for wrongdoers and too readily assume that those who invoke it are guilty.¹² Nothing in the courtroom corrects that assumption unless the judge does, so the jurors fill the gap with the very inference the state may not encourage.

The judge's instruction is the remedy because it tells jurors in plain terms what the law requires. No judge can stop jurors from speculating about why a defendant stands mute, but a judge can reduce the speculation to a minimum, and the Court said the judge has an affirmative constitutional obligation to use that tool when the defendant seeks it.¹³ The holding follows: upon timely request, a non-testifying defendant is constitutionally entitled to an instruction that the jury must not draw any adverse inference from his failure to testify.¹⁴ The duty is triggered by the defendant's request, which is a deliberate design choice and not an oversight, as the next paragraph explains.

Kentucky's only stated interest in refusing was to protect the defendant: a no-inference instruction, it argued, would be a direct comment by the court that emphasized the fact that the accused had not testified.¹⁵ The Court rejected that justification as Lakeside had, finding it strange to conclude that a cautionary instruction violates the very constitutional provision it is meant to protect.¹⁶ The argument also depends on an assumption Lakeside labeled doubtful, namely that jurors have not noticed the silence and will not draw adverse inferences unless reminded of it.¹⁷ A jury that has watched the defense case close without the defendant has noticed already. What remains of Kentucky's concern is a tactical judgment about whether a reminder helps or hurts, and defense lawyers do often decline the instruction for exactly that reason.¹⁸ That judgment belongs to the defense, which is why the entitlement begins with a request. The state cannot make the judgment for the defendant by refusing a request. Lakeside shows the converse, that the state commits no constitutional violation by giving the instruction over the defendant's objection.¹⁹

The separate opinions show where the rule is contested and where it is settled. Justice Stevens, concurring, stressed that whether the jury hears the instruction is the defendant's choice and not the state's.²⁰ Justice Powell, concurring in the judgment, voiced doubts about the reasoning of Griffin but was willing to follow it as the governing law.²¹ Doubts of that kind sit at the margins of the doctrine, and in application the rule is settled: once a non-testifying defendant asks for the instruction, the judge must give it.

Step five marks the place where the rule is most often misapplied. Carter gives a defendant a claim to the instruction when the defendant wants it. The Constitution gives no defendant a veto over an instruction the judge chooses to give, because a direction to draw no adverse inference is the opposite of the instruction Griffin forbids, the one that tells jurors silence may be held against the defendant.²⁷ The two instructions both mention the silence, and the difference lies in what the jurors are told to do with it.