609 (1965)
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U.S. Supreme Court
Griffin v. California, 380 U.S. 609 (1965)
Griffin v. California No. 202 Argued March 9, 1965 Decided April 28, 1965 380 U.S. 609 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA Syllabus Comment to the jury by a prosecutor in a state criminal trial upon a defendant's failure to testify as to the matters which he can reasonably be expected to deny or explain because of facts within his knowledge or by the court that the defendant's silence under those circumstances evidences guilt violates the Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution, as made applicable to the States by the Fourteenth, Malloy v. Hogan, 378 U. S. 1. 380 U. S. 610615. 60 Cal.2d 182, 383 P.2d 432, reversed. MR. JUSTICE DOUGLAS delivered the opinion of the Court. Petitioner was convicted of murder in the first degree after a jury trial in a California court. He did not testify at the trial on the issue of guilt, though he did testify at the separate trial [Footnote 1] on the issue of penalty. The trial court instructed the jury on the issue of guilt, stating Page 380 U. S. 610 that a defendant has a constitutional right not to testify. But it told the jury: [Footnote 2]

decided after the Supreme Court of California had affirmed the present conviction.2d 432. [Footnote 3] Page 380 U. the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable."As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge. It stated that failure of a defendant to deny or explain the evidence of which he had knowledge does not create a presumption of guilt." It added. S. He would know how long he was with her in that box. and the California Supreme Court affirmed. He would know whether he walked away from that place cool as a cucumber when he saw Mr.Rptr. Hogan. this defendant would know." "Essie Mae is dead. The defendant won't. by itself. however. He would know how she got down the alley. though he does testify." "And. 24. 1. because he was conscious of his own guilt and wanted to get away from that damaged or injured woman." "What kind of a man is it that would want to have sex with a woman that beat up is she was beat up at the time he left? " Page 380 U. 612 . the evidence placing him with her in the alley where her body was found. 32 Cal. to consider whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v." The death penalty was imposed. 378 U." "These things he has not seen fit to take the stand and deny or explain. He would know whether he beat her or mistreated her. 377 U. The prosecutor made much of the failure of petitioner to testify: "The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her. she can't tell you her side of the story. S. he fails to deny or explain such evidence. if anybody would know. The case is here on a writ of certiorari which we granted. nor. 60 Cal. Petitioner had been seen with the deceased the evening of her death. He would know how the blood got on the bottom of the concrete steps. in the whole world. 383 P. 611 "He would know that.S. that no such inference could be drawn as to evidence respecting which he had no knowledge.2d 182. He would know how her wig got off. Villasenor. if he does not testify or if. warrant an inference of guilt nor relieve the prosecution of any of its burden of proof. 989. S.

of our inquiry. so holds. declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him." the spirit of the SelfIncrimination Page 380 U. 55. but on an Act of Congress. § 3481. S. 378 U. honest. S. No formal offer of proof is made. a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. for "statute." 149 U. United States. 308 U. It is. particularly when they may have been in some degree compromised by their association with others. prejudices against him. And see Adamson v. 62 Cal. however. 332 U. That the inference . It is said. It cuts down on the privilege by making its assertion costly. The Court in the Wilson case stated: ". violates the Fifth Amendment. natural and irresistible. S.S. The statute. Page 380 U. 66. in any event. reversible error would have been committed. It is said. 149 U. Waterfront Comm. that the Wilson decision rested not on the Fifth Amendment.S. which the Fifth Amendment outlaws. however. 149 U. S. in substance. . [Footnote 5] It is a penalty imposed by courts for exercising a constitutional privilege. The question remains whether.2d 436. that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is. S. S. 378 U. 6. the comment rule. rather than remove. S. 398 P. For comment on the refusal to testify is a remnant of the "inquisitorial system of criminal justice. California. Excessive timidity. approved by California. 614 Clause is reflected. Modesto. 42 Cal. 50. What the jury may infer. as in other situations. now 18 U.If this were a federal trial. It is not everyone who can safely venture on the witness stand though entirely innocent of the charge against him. If the words "fifth Amendment" are substituted for "act" and. [Footnote 4] That indeed is the fact. n. People v. . United States. It is not everyone. We think it does. 452-453. 46. is one thing. 60. not the end. nervousness when facing others and attempting to explain transactions of a suspicious character and offenses charged against him will often confuse and embarrass him to such a degree as to increase. 332 U. S. 294. however. 287. in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be witnesses. 308 U. 426-427. as the opinion of the Court in the Wilson case states..C." Murphy v. the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to everyone. S. 762-763. But that is the beginning. 417.2d 753. p. Wilson v. and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. 613 Bruno v. but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance. S. statute or not. 52. and not wish to be witnesses. given no help from the court. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another. who would therefore willingly be placed on the witness stand.Rptr.

283 N. of Educ. 28 N. 364. and not that he is unable to deny the accusations. of the California Constitution provides in part: ". 59 N. S. 481. S. and hold that the Fifth Amendment. that "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. 23 N. 372-373. in any criminal case. Evidence § 2272. and therefore another possible inference can be drawn from his refusal to take the stand. p. 142 A. 208 A.Const. Howard. White. Newark Bd. 398 P.M." [Footnote 3] The California Supreme Court later held. § 2051).J. New Mexico permits comment by the prosecutor. in light of the privilege against self-incrimination. It is true that the defendant might fear that his prior convictions will prejudice the jury. two. 174 A. p. 2 (McNaughton rev." State v. Hogan. § 13. 287. 417.Rptr. but holds that the accused is then entitled to an instruction that "the jury shall indulge no presumption against the accused because of his failure to testify.. 1. in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment.Rptr. 378 U.J. Modesto. The absence of an express constitutional privilege against self-incrimination also puts Iowa among the six. in People v.Proc. I.2d 65.J.J. his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel. 14 S.. The overwhelming consensus of the States. See State v. but its constitution contains no provision embodying the privilege against self-incrimination (see Laba v. 168-169. State v. supra.Stat. Garvin. providing for separate trials on the two issues. 129 A.2d 402. however.2d 289." We take that in its literal sense. 85. See 8 Wigmore. 279 P.). S.1. Hogan. 62 Cal. 29. California and Ohio. Of the six States which permit comment. . 145 A. Heno.2d 850. Ohio Const. n.2d 753. forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. [Footnote 4] Section 3481 reads as follows: . ed.C. 923. The legislatures or courts of 44 States have recognized that such comment is. 615 of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself: "Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him (Code Civ." N. § 10. Art. but not by the prosecutor. Ferguson. 1961 and 1964 Supp. § 41-12-19. 453. State v. is opposed to allowing comment on the defendant's failure to testify.Page 380 U." Id. [Footnote 2] Article I.2d 273. 27 N. that its "comment" rule squared with Malloy v. p. 181.M. 119 Conn. 42 Cal. p. 197. Corby. 763. 389. whether the defendant testifies or not.2d 436. § 13.W. 203. 268. 106. 378 U. 398 P. Connecticut permits comment by the judge. "an unwarrantable line of argument. cf. 427. State v. 917.Ann. 70). [Footnote 1] See Penal Code § 190. Sandoval.2d. 11. give this permission by means of an explicit constitutional qualification of the privilege against self-incrimination. 44 N. State v. 226 Iowa 361. Art. I.E. and may be considered by the court or the jury. We said in Malloy v. 483. New Jersey permits comment. 35 S. State v. . [Footnote 6] Reversed. 158. Cal. THE CHIEF JUSTICE took no part in the decision of this case. 42 Cal.

but it expressly disclaimed any intention to decide the point. 110 Mass. and we proposed to adopt it as a law of the United States. S. § 3481 was designed. The four dissenters (BLACK. Id. however. S. at 380 U. 617. 123 Mass. 325. A fifth member of the Court.2d 662. as in Bruno v. at 378 U. the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. to the States: "It would be incongruous to have different standards determine the validity of a claim of privilege . 620. and. process is a fundamental part of the "liberty" guaranteed by the Fourteenth Amendment. apply the no-comment rule to the States. 302 U. he also agreed with Justices Vinson. Scott. See my opinion concurring in the result in Pointer v. inter alia. c. concurring. which is almost identical with 18 U. (Emphasis added.Rec. at his own request. In Adamson v. at 378 U. S. a majority of this Court indicated their acceptance of this proposition." Id. cl. stated in a separate opinion: "For historical reasons. 1. 380 U. United States. Frye of Maine. p. c. Hogan. in dissent. I see no legitimate escape from today's decision and therefore concur in it."In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State. the question was. But. As a "non-fundamental" part of the Fifth Amendment (cf. 408. 400. Mr. depending on whether the claim was asserted in a state or federal court. MR. DOUGLAS.E. 50). as part of that immunity. and Burton that the Fourteenth Amendment did not make the Self-Incrimination Clause of the Fifth Amendment applicable to the States. supra. said. 11. Jackson.Stat. I do so. c. post. I would not. 302 U. 260. under the Constitution. S. my Brother STEWART. now Mass. 1948. is at the heart of our federal system. 46. with great reluctance. 319. S.Laws Ann.C. Hogan. that the jury be instructed that his silence must be disregarded." Malloy v. S. Third (1959). as such. . 332 U. S. 1866. my opinion concurring in the result in Pointer. the person charged shall. 332 U." Palko v. S. See also Commonwealth v. District. 300 Mass. 62 Stat. 380 U. 409). 233. JUSTICE HARLAN. Commonwealth v. Harlow. 378 U." within the limits of fundamental fairness. California. § 3481. that the Fifth Amendment applies Page 380 U. The powers and responsibilities of the State and Federal Governments are not congruent..) My answer then (378 U. [Footnote 6] We reserve decision on whether an accused can require. fully demonstrates that the no-comment rule "might be lost. 332 U. and justice still be done. the Fifth Amendment bars adverse comment by federal prosecutors and judges on a defendant's failure to take the stand in a criminal trial. [Footnote 5] Our decision today that the Fifth Amendment prohibits comment on the defendant's silence is no innovation. though he agreed with the dissenters on this point. § 20. comment on the failure of an accused to take the witness stand is forbidden in federal prosecutions. . thus. Murphy and Rutledge. 15 N. 385.S. While I would agree that the accusatorial. Reed. And given last Term's decision in Malloy v. within the federal judicial system.S. as here. Connecticut.C. Therefore." 7 Cong. 308 U. S. Malloy put forward a single argument for applying the Fifth Amendment. The legislative history shows that 18 U. Justice Frankfurter. Opinion of the Justices. His failure to make such request shall not create any presumption against him. 239.S. 287. since. a limited immunity from the common duty to testify was written into the Federal Bill of Rights. S. and I am prepared to agree that. JJ. Texas. Possession or Territory. for. spokesman for the bill. whether the Fifth Amendment proscribed California's comment practice..S. 380 U. 645. on a previous occasion. p. to bar counsel for the prosecution from commenting on the defendant's refusal to testify. a right accorded him by that amendment. be a competent witness. for me.Gen. S. at 380 U. 616 to the States in all its refinements. . I agree with the Court that. 27) and now is that "incongruity. 411. he joined the opinion of the Court which so held (the Court's opinion assumed that the Fifth Amendment barred comment. they are not intended to be. rather than inquisitorial.) would have answered this question in the affirmative." June 25. 61. S. 833. S. "That is the law of Massachusetts. S. The reference was to Mass. 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. p. but for Malloy.

emphasized that a person accused of crime in a public forum would ordinarily deny or explain the evidence against him if he truthfully could do so. With both candor and accuracy. the prosecutor. S. in his argument to the jury. 617 Jersey. Twining v. S. by itself. supra. The petitioner chose not to take the witness stand at his trial upon a charge of first-degree murder in a California court. 443. 620 covered by a specific Act of Congress which has been in effect ever since defendants have been permitted to testify at all in federal criminal trials. Wilson v. 379 U. of its own force.It has also recently been suggested that measuring state procedures against standards of fundamental fairness as reflected in such landmark decision as Twining v. if he does not testify. however. This approach to the requirements of federalism. This Court long ago decided that the Due Process Clause of the Fourteenth Amendment does not. if a defendant does not have the knowledge that he would need to deny or to explain any certain evidence against him. the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that. S. dissenting. [Footnote 2/3] It is a question which has not arisen before. I am free to express the hope that the Court will eventually return to constitutional paths which. in cases like this. In this connection. Although compelled to concur in this decision. and further provides: "[I]n any criminal case. among the inferences that may be reasonably drawn therefrom. Adamson v. it has followed throughout its history. . United States. S. United States. The Court holds. 149 U. 211 U. Article I. and may be considered by the court or the jury. S. of the California Constitution establishes a defendant's privilege against self-incrimination. to the conclusion that the way to eliminate friction with state judicial systems is not to attempt a working harmony. at 380 U. [Footnote 2/1] Also in conformity with this California constitutional Page 380 U. MR." The jury found the petitioner guilty as charged. 619 No claim is made that the prosecutor's argument or the trial judge's instructions to the jury in this case deprived the petitioner of due process of law as such. Adamson v. forbid this kind of comment on a defendant's failure to testify. 60. until recently. 413-414 (concurring opinion of GOLDBERG. [Footnote 2/2] Page 380 U. the judge instructed the jury in the following terms: "It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. 46. 618 provision. S. or if. his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court any by counsel. New Jersey. and Palko v. 78. S. and. but to override them altogether. JUSTICE STEWART. Mississippi. Thus. S. 308 U.). it should be noted that. S. until last year. California. in the federal judicial system. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge. and his conviction was affirmed by the Supreme Court of California. not unlike that evinced by the Court in Henry v. the Court concedes that the question before us is one of first impression here. the self-incrimination provision of the Fifth Amendment had been held to apply only to federal proceedings. nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. 332 U. S." an injunction which the Court less than a year ago for the first time found was applicable to trials in the courts of the several States." In conformity with this provision. because. however. S. § 13. [Footnote 2/4] See Bruno v. apparently leads. supra. though he does testify. with whom MR. he fails to deny or explain such evidence. 78. whether or not he does testify rests entirely in his own decision. whether the defendant testifies or not. the matter has been Page 380 U. that the California constitutional provision violates the Fifth Amendment's injunction that no person"shall be compelled in any criminal case to be a witness against himself. those unfavorable to the defendant are the more probable. JUSTICE WHITE joins. 211 U. Texas. Connecticut. J. supra. The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or." Pointer v. New Page 380 U. warrant an inference of guilt. "would require this Court to intervene in the state judicial process with considerable lack of predictability and with a consequent likelihood of considerable friction. 287. California.

finally. The California rule allowing comment by counsel and instruction by the judge on the defendant's failure to take the stand is hardly an idiosyncratic aberration. S. the Court has only this to say: "It is a penalty imposed by courts for exercising a constitutional privilege. but rather a means of articulating and bringing into the light of rational discussion a fact inescapably impressed on the jury's consciousness. S. no one can say where the balance of advantage might lie as a result of the attorneys' discussion of the matter. And if he spoke falsely. even though the choice goes unmentioned." The petitioner was not compelled to testify. [Footnote 2/6] The practice has been endorsed by resolution of the American Bar Association and the American Law Institute. Surely no one would deny that the State has an important interest in throwing the light of rational discussion on that which transpires in the course of a trial. the danger exists that the inferences drawn by the jury may be unfairly broad. No constitution can prevent the operation of the human mind. 623 The formulation of procedural rules to govern the administration of criminal justice in the various States is properly a matter of local concern." Exactly what the penalty Page 380 U. Faced with this formidable array of alternatives." Compulsion is the focus of the inquiry." Whether the same limitations would be observed by a jury without the benefit of protective instructions shielding the defendant is certainly open to real doubt. [Footnote 2/9] Other States have dealt with this danger in a variety of ways. both to protect the defendant from the very real dangers of silence and to shape a legal process designed to ascertain the truth. How can it be said that the inferences drawn by a jury will be more detrimental to a defendant under the limiting and carefully controlling language of the instruction here involved than would result if the jury were left to roam at large with only its untutored instincts to guide it. the trial judge warned that the prosecution's burden remained that of proof "beyond a reasonable doubt. that a defendant will be at more of a disadvantage under the California practice than he would be in a court which permitted no comment at all on his failure to take the witness stand. our only legitimate function is to prevent violations of the Constitution's commands. In support of its conclusion that the California procedure does compel the accused to testify. if any compulsion be detected in the California procedure. with the way California has chosen to deal with the problem. Since comment by counsel and the court does not compel testimony by creating such an awareness. note 3. S. Without limiting instructions. a far cry from the subject matter of the case before us. The California procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury. as the Court's opinion indicates. . 621 imposed consists of is not clear. It is not. to be a witness against himself. or even disapprove of the judge's specific instructions in this case. It is not at all apparent to me. in a jury trial. at pp. it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts. [Footnote 2/7] and has the support of the weight of scholarly opinion. some compulsion which the Court does not describe and which I cannot readily perceive. [Footnote 2/10] But. a defendant exercises this constitutional right. Moreover. realize this quite evidence fact. I think the California comment rule is not a coercive device which impairs the right against self-incrimination. and he did not do so. and that whatever compulsion may exist derives from the defendant's choice not to testify. I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds. No doubt the prosecution's argument will seek to encourage the drawing of inferences unfavorable to the Page 380 U. California has honored the constitutional command that no person shall "be compelled in any criminal case to be a witness against himself. he was commanded to answer whatever was asked of him. 622 defendant. and thus rebut the natural if uneducated assumption that it is because the defendant cannot truthfully deny the accusations made. the defendant's counsel equally has an opportunity to explain the various other reasons why a defendant may not wish to take the stand. his decision to speak was unquestionably coerced." and. and subjected to a far-reaching and deeply probing inquiry in an effort to ferret out some unknown and frequently unsuspected crime.We must determine whether the petitioner has been "compelled . to draw from the defendant's silence broad inferences of guilt? The instructions in this case expressly cautioned the jury that the defendant's failure to testify "does not create a presumption of guilt or by itself warrant an inference of guilt". 380 U. But whenever. or mutilation. Some States have permitted this danger to go unchecked by forbidding any comment at all upon the defendant's failure to take the witness stand. as a matter of policy. Some might differ. [Footnote 2/8] Page 380 U. . banishment. he was subject to further punishment. The Model Code of Evidence. It cuts down on the privilege by making its assertion costly. such matters of state policy are not for this Court to decide. However. the members of the jury are bound to draw inferences from his silence. the Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself. that the jury becomes aware that the defendant has chosen not to testify in his own defense. of course. and the Uniform Rules of Evidence both sanction the use of such procedures. We are charged with no general supervisory power over such matters. He declined to answer on pain of incarceration. . Ante. 611-612. for the jury will. When a suspect was brought before the Court of High Commission or the Star Chamber. S. Certainly. it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. not from any comment by court or counsel. it was further admonished that such failure does not "relieve the prosecution of its burden of providing every essential element of the crime. as I understand the problem. so long as the constitutional command is obeyed. on any realistic view of the trial process. [Footnote 2/5] Those were the lurid realities which behind enactment of the Fifth Amendment.

. 677. pp.J. Dunmore. 652. 59 A. . took the view embraced by the Court today. 380 U. [Footnote 2/8] See Bruce. JUSTICE BLACK and MR.B. Mr.Rep. That no such approval was given by this dissenting opinion is further made evident by the fact that Mr. ed. and the petitioner has not argued that another form would have been denied. now 18 U.W.L. 57 N. Hanks v. 378 U. The Right to Comment on the Failure of the Defendant to Testify. Comment on Defendant's Failure to Take the Stand. in concurring. People v..2d 432. 253. Comment on Failure of Accused to Testify.A. [Footnote 2/10] It should be noted that the defendant's counsel did not request any additions to the instructions which would have brought but other possible reasons which might have influenced the defendant's decision not to become a witness.W. Justice Rutledge. 11 A. Hiscock. thereby giving no approval to that assumption. S. e. [Footnote 2/3] In the Adamson case.J. 145. Criminal Law and Procedure in New York.S. [Footnote 2/5] See generally 8 Wigmore. 1.Rep. Commonwealth. Note.L. Justice Murphy and Mr.Rptr. 77 S.2d 182. 203. 398 P.B. Uniform Rules of Evidence. 56 Minn.of ruling upon the issue. State v. S.J.W.Rptr. 42 Cal. Justice Reed's opinion made clear that the California rule was only assumed to contravene the Fifth Amendment. Justice Frankfurter. 62 Cal.2d 753. thus bringing to three the members of the Court who. felt it necessary to make what they characterized as an "addition. Pearce. 464. [Footnote 2/2] 60 Cal. Rule 23(4) (1953).Rep. 248 Ky.I would affirm the judgment. 226. 674.L.2d 436. [Footnote 2/9] See. 26 Col. of itself. 58 S. 1065. ante. 24. Hogan. in dicta." an expression of their view that the guarantee against self-incrimination had been violated in the case. .A. also in dissent. The California Constitution does not.2d 394. § 3481. Rule 201 (1942)." The dissenting opinion of MR. [Footnote 2/6] Model Code of Evidence. 258-262. in terms.C. 203 (1931). 226. 57 Yale L. Criminal Justice in America. 9 Proceedings A. Modesto. that court has since upheld the federal constitutionality of the California comment rule in a thoroughly reasoned opinion by Chief Justice Traynor. 417. 130-141 (1934). bar comment upon failure to testify. Tines v. 137-159 (1931).B. 31 Mich. 202.A. prescribe what form of instruction should be given. Commonwealth. 25 Ky. 609-610.L.. as amended. even in dictum. the present question was not reached. 363. 32 Cal. however. JUSTICE DOUGLAS read the majority opinion as "strongly [implying] that the Fifth Amendment does not.Rev. [Footnote 2/1] See the excerpt from the prosecutor's argument quoted in the Court's opinion. "without any intention . also indicated that he was prepared to agree that the Fifth Amendment barred comment. 30.Rev. 1961). the California Supreme Court did not give plenary consideration to the question now before us. [Footnote 2/4] 20 Stat. Mr. 26 Yale L. Evidence § 2250 (McNaughton rev. 1233. [Footnote 2/7] 56 A.I." but they considered the case on the majority's assumption. because the majority ruled that the Fifth Amendment is not applicable to the States. 383 P. Hadley. As this case was decided before Malloy v.g.

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