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Before it can violate due process, a closing argument's impropriety must be "egregious." Donnelly v. De Christoforo, 416 U. S. 637, 647-648 (1974). The most relevant example of the height of the due process hurdle that defendant must leap is Griffin's predecessor, Adamson v. California, 332 U. S. 46 (1947). Adamson examined a California law allowing the trial court to instruct the jury that it could consider defendant's failure to testify against him. See id., at 48. Because the Fifth Amendment did not then apply to the states, see id., at 52-53, defendant had to make his attack under the due process right to a fair trial. Id., at 53. Due process is not coextensive with the Fifth Amendment's self-incrimination right, see id., at 54, but instead protected against a narrow set of particularly serious constitutional wrongs. Although due process prevented the "compulsion to testify by fear of hurt, torture or exhaustion" or "any other type of coercion," ibid., due process did not prohibit commentary upon defendant's decision not to testify. The state could require defendant "to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes" because "[t]he purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction." Id., at 57.
Had this Court not applied the Fifth Amendment to the states in Malloy v. Hogan, 378 U. S. 1 (1964), California's instruction would still be valid. The fairness of the California instruction was not questioned in Griffin. What mattered was the excessive burden it placed on the exercise of the Fifth Amendment privilege. See Griffin, supra, 380 U. S., at 614. Therefore, the inference from silence struck down in Griffin is still valid under due process. See Baxter v. Palmigiano, 425 U. S. 308, 319 (1976). If Griffin error does not violate due process, then fundamental fairness does not support extending Griffin beyond the self-incrimination privilege.
Griffin relies more on generalities than specifics for its initial justification. The decision first placed heavy reliance upon past practice. It noted the strong majority rule against commenting on defendant's decision not to testify. Id., at 611, n. 3. It also found much support for its Fifth Amendment interpretation from Wilson v. United States, 149 U. S. 60 (1893). Griffin, 380 U. S., at 612. Wilson interpreted the statute granting criminal defendants competency to testify, the predecessor to 18 U. S. C. §3481, as prohibiting commentary on defendant's exercise of the right to silence at trial. See Wilson, 149 U. S., at 65. The Griffin Court quotes extensively from a well-known passage in Wilson which pointed out the dangers testifying posed to the innocent defendant.
". . . 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 every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him." Griffin, supra, 380 U. S., at 613 (quoting Wilson, supra, 149 U. S., at 66).
By simply substituting "Fifth Amendment" for "act" and "statute," Griffin established its self-incrimination foundation. See id., at 613-614. Comment on the exercise of the privilege was thus " 'inquisitorial,' " see id., at 614 (quoting Murphy v. Waterfront Comm'n, 378 U. S. 52, 55 (1964)), as it imposed too high a cost on the exercise of the privilege. See ibid. These passages only begin the inquiry. A careful examination of the Fifth Amendment and cases applying Griffin reveal the decision's meaning.
As this Court subsequently demonstrated, Griffin does not forbid any "cost" from being imposed upon the Fifth Amendment privilege. Baxter v. Palmigiano, 425 U. S. 308, 312 (1976) involved a prison disciplinary hearing in which the prisoner's silence would be held against him. Even though this practice placed at least some cost on the prisoner's exercise of his Fifth Amendment privilege, this Court refused to extend Griffin. Id., at 319.
The fundamental differences between a prison disciplinary hearing and a criminal prosecution were key to the decision not to extend Griffin. Ibid. As the Court noted, Griffin's Fifth Amendment protection did not extend to civil cases, where adverse inferences may be drawn against parties that do not testify. Id., at 318. Because prison discipline involved interests other than the prosecution of criminals, this Court "decline[d] to extend the Griffin rule to this context," id., at 319, demonstrating that Griffin is inextricably tied to the policies of the self-incrimination privilege.
"It is important to note here that the position adopted by the Court of Appeals is rooted in the Fifth Amendment and the policies which it serves. It has little to do with a fair trial and derogates rather than improves the chances for accurate decisions. Thus, aside from the privilege against compelled self-incrimination, the Court has consistently recognized that in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause." Ibid. (emphasis added).
Baxter provides the first key to a proper understanding of Griffin; the decision only extends to where its Fifth Amendment policies are served. Unfortunately, the Griffin decision did not go into great detail when explaining the Fifth Amendment policies behind the decision. Although it demonstrated how a hypothetical innocent defendant may have good reasons not to testify, see supra, at 10, this could not form a strong basis for that decision, as it flies in the face of this Court's consistent recognition of the relevance of silence in the face of accusation. See Baxter, supra, 425 U. S., at 319; see also United States v. Hale, 422 U. S. 171, 176 (1975); Adamson v. California, 332 U. S. 46, 56 (1947); Raffel v. United States, 271 U. S. 494, 499 (1926). Therefore, some other Fifth Amendment policy must form the basis of the Griffin rule.
Because the self-incrimination privilege applies to so many different situations, and because its history is uncertain, the privilege has no single policy. See 8 J. Wigmore, Evidence §2251, pp. 295-297 (McNaughton rev. 1961). Instead, up to a dozen policies have been asserted to justify it. See id., at 297-310, n. 2. This Court's most extensive examination of self-incrimination policy is found in Murphy v. Waterfront Comm'n, 378 U. S. 52, 55 (1964) (citations and internal quotation marks omitted), overruled on other grounds in United States v. Balsys, 141 L. Ed. 2d 575, 599, 118 S. Ct. 2218, 2230 (1998).
"It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent."
Griffin attacks the California instruction as "inquisitorial." This term, however, is no more than a label. Cf. 8 Wigmore, supra, §2251, at 312, n. 5 (dismissing argument that the privilege prevents procedures such as those associated with the Star Chamber or Inquisition as "platitudes"). What matters is why that label sticks.
The policy most closely supporting Griffin is Murphy's "cruel trilemma." Allowing the trial court or prosecutor to tell the jury to infer guilt from silence is a form of "unconstitutional compulsion." Lakeside v. Oregon, 435 U. S. 333, 339 (1978). Thus, in Griffin, Murphy's third prong of contempt was replaced with the state's "free[dom] to ask the jury to draw adverse inferences from a defendant's failure to take the witness stand." See ibid. While Griffin does no doubt protect the innocent defendant by removing the risk that he is a poor witness or could be impeached with prior convictions, see Griffin, supra, 380 U. S., at 614-615, it primarily shields guilty defendants from this special variant of Murphy's "cruel trilemma." This is, of course, a protection that only benefits the guilty. The innocent defendant has no "trilemma," as he may testify without incriminating or perjuring himself. Therefore, "[t]his 'trilemma' is wholly of the guilty suspect's own making of course. An innocent person will not find himself in a similar quandary (as one commentator has put it, the innocent person lacks even a 'lemma')." Brogan v. United States, 522 U. S. 398, 404 (1998) (citation omitted).
Griffin's basis in compulsion is also found in one of the rare cases extending Griffin, Brooks v. Tennessee, 406 U. S. 605 (1972). Brooks invoked Griffin to overturn a Tennessee rule requiring defendant to testify first if at all. See id., at 610-612. What made the Fifth Amendment privilege " 'costly' " in this case, id., at 611 (quoting Griffin, 380 U. S., at 614), was the compulsion inherent in requiring him to testify so early in the trial. "Pressuring the defendant to take the stand, by foreclosing later testimony if he refuses, is not a constitutionally permissible means of ensuring his honesty." Id., at 611 (emphasis added).
The statement in Carter v. Kentucky, 450 U. S. 288, 301 (1981) that "[t]he Griffin case stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify" must be read in this context. The "price" condemned in Carter is only extracted through Griffin's unique trilemma. In other circumstances, defendants must bear the costs associated with being required to make difficult choices concerning the exercise of their rights. "The cases in this Court since [United States v. Jackson, 390 U. S. 570 (1968)] have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid." Corbitt v. New Jersey, 439 U. S. 212, 218 (1978).
In Crampton v. Ohio, 402 U. S. 183, 210-211 (1971),(2) defendant challenged Ohio's unitary trial, where the jury determined both guilt and punishment in a single verdict. Defendant attacked this under Griffin because he could remain silent on the issue of guilt only at the price of losing any chance to plead his case on the issue of punishment. Ibid. The Court upheld this burden on the self-incrimination privilege. Id., at 217.
"The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." Id., at 213 (internal quotation marks and citation omitted).
Griffin is a narrow ruling based on the close similarity between the pressure to testify from inferring guilt from silence and the pressure exerted by the threat of contempt. It is even narrower within the confines of a prosecutor's commentary on defendant's silence. In United States v. Robinson, 485 U. S. 25, 26 (1988), defense counsel's closing argument asserted that the state had not allowed defendant to tell his side of the story. The prosecutor responded by arguing that defendant could have taken the stand. Ibid. This Court declined to extend Griffin, noting that its statement that the self-incrimination privilege "forbids . . . comment by the prosecution on the accused's silence," Griffin, supra, 380 U. S., at 615, was merely "broad dicta . . . that must be taken in light of the facts of that case." Robinson, supra, 485 U. S., at 33-34. Even though, as in Griffin, "[t]here may be some 'cost' to the defendant in having remained silent" this was not enough to extend Griffin's narrow rule. Id., at 34.
When the Second Circuit chose to extend Griffin to the Confrontation Clause and the right to testify, it was building upon a very narrow base. As shall be seen, Griffin cannot support this edifice.
Footnote 2. Crampton was decided with McGautha v. California, 402 U. S. 183 (1971), after
Furman v. Georgia, 408 U. S. 238 (1972), this Court granted rehearing and vacated on other
grounds. See Crampton v. Ohio, 408 U. S. 941 (1970).
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