United States v. Robinson

1988-02-24

Headline: Court allows a prosecutor to say the accused “could have taken the stand,” ruling such a response to defense argument does not violate the right against self-incrimination in that context.

Holding: The Court held that a prosecutor’s comment that the defendant "could have taken the stand" did not violate the Fifth Amendment when it was a fair response to defense counsel’s argument and did not treat silence as evidence of guilt.

Real World Impact:

Allows prosecutors to respond to defense claims by noting defendant could have testified.
May make defense lawyers avoid claiming the government denied chances to explain.
Affects trial strategy about commenting on a defendant’s silence.

Topics: right to remain silent, prosecutor arguments, criminal trial procedure, insurance and mail fraud

Summary

Background

A man was tried for two counts of mail fraud tied to arson-related insurance claims after his Kentucky truck stop and later his Tennessee home burned. He filed large insurance claims and did not testify at trial. In closing, his lawyer repeatedly argued the Government had not given him a chance to explain, and the prosecutor replied that the defendant "could have taken the stand and explained it to you." The trial judge allowed that reply and the jury was told not to draw any inference from the defendant's silence. The Court of Appeals reversed the convictions on Fifth Amendment grounds.

Reasoning

The Supreme Court asked whether the prosecutor's remark violated the defendant's right not to be forced to incriminate himself. The majority concluded there was no constitutional error because the comment was a fair response to the defense lawyer's repeated suggestion that the Government had denied the defendant an opportunity to explain. The Court accepted the trial judge's view that defense remarks opened the door to such a reply and emphasized that the prosecutor did not treat silence as substantive evidence of guilt. Because the majority found no Fifth Amendment violation, it did not reach whether any error would be plain error.

Real world impact

The decision permits prosecutors to mention a defendant's opportunity to testify when answering defense claims that the government denied chances to explain. That alters how courts will review similar trial exchanges and may affect trial strategy by both prosecutors and defense lawyers.

Dissents or concurrances

Two Justices dissented or partially dissented: Justice Marshall (joined by Justice Brennan) argued the ruling undermines a bright-line prohibition on comments about a defendant's silence, while Justice Blackmun would have focused on the plain-error standard and sought further clarification of that doctrine.