Fontaine v. California

Background

A man was accused of two marijuana sales to a police informer in mid-1963. The State waited months to indict because it wanted to use the informer in other cases, but by trial the informer had disappeared. The evidence relied on taped phone calls (which the defendant said were ambiguous) and police testimony, though some police observations left doubt whether the seller was really the defendant. The jury convicted, but the trial judge ordered a new trial because the delay made the informer unavailable. A state appellate court reversed and later treated errors as harmless under state and federal harmless-error rules.

Reasoning

The Court focused on whether the prosecutor’s comments and the judge’s instruction that the jury could draw negative inferences from the defendant’s silence violated the right to remain silent and, if so, whether those comments were harmless. Citing earlier decisions, the Court said the comments did violate the privilege against self-incrimination. Because the case depended on circumstantial evidence and the informer’s testimony was missing, the State failed to prove beyond a reasonable doubt that the comments did not contribute to the conviction.

Real world impact

The decision means courts must be cautious about allowing prosecutors or judges to comment on a defendant’s choice not to testify, especially when a key witness is missing and the case relies on indirect evidence. In such situations, convictions may be overturned unless the State proves the remarks did not affect the verdict.

Dissents or concurrances

Two Justices said they would have affirmed, arguing that jurors could consider a defendant’s failure to deny or explain evidence as one possible inference about the truth of that evidence.