Defendants retain their Fifth Amendment right to remain silent at sentencing.

Jun 30, 2011 Defendants retain their Fifth Amendment right to remain silent at sentencing.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.  


Bill of Rights. (From the public domain.)



A criminal defendant’s right to remain silent does not go out the door through a conviction following a guilty plea or trial. Mitchell v. U.S., 526 U.S. 314, 119 S.Ct. 1307 (1999). Mitchell is black letter law, despite the firm dissent of four justices therefrom. However, with so much black letter law in existence, I underline Mitchell’s critical Fifth Amendment rule to help assure it does not slip through the cracks in court.

Mitchell is critically important for every time a judge implies or states that a defendant is wasting the court’s time or not playing fair by insisting that the prosecution prove a prior conviction, whether for purposes of sentencing or for purposes of a probation violation hearing (where clearly we are not yet even at the sentencing phase before a probation violation has been found). Mitchell is critical for every time that a sentencing judge asks a defendant where s/he bought the drugs from, whom s/he sold the drugs to, and how often s/he uses drugs. Mitchell is essential for every time that a defendant refuses to give his or her version of events at sentencing, and for every time a defendant declines to answer one or more questions of a probation or pretrial officer as to sentencing and as to pretrial release. Mitchell is absolutely essential.

Mitchell’s key language includes the following:

The rule against adverse inferences from a defendant’s silence in criminal proceedings, including sentencing, is of proven utility. Some years ago the Court expressed concern that “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.” Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Later, it quoted with apparent approval Wigmore’s observation that “ ‘[t]he layman’s natural first suggestion would probably be that the resort to privilege in each instance is a clear confession*330 of crime,’ ” Lakeside v. Oregon, 435 U.S. 333, 340, n. 10, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) (quoting **1316 8 Wigmore, Evidence § 2272, at 426). It is far from clear that citizens, and jurors, remain today so skeptical of the principle or are often willing to ignore the prohibition against adverse inferences from silence. Principles once unsettled can find general and wide acceptance in the legal culture, and there can be little doubt that the rule prohibiting an inference of guilt from a defendant’s rightful silence has become an essential feature of our legal tradition. This process began even before Griffin. When Griffin was being considered by this Court, some 44 States did not allow a prosecutor to invite the jury to make an adverse inference from the defendant’s refusal to testify at trial. See Griffin, supra, at 611, n. 3, 85 S.Ct. 1229. The rule against adverse inferences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant’s individual rights. The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege. Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it.


By holding petitioner’s silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.


 Mitchell, 526 U.S. at 329-30. 

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