Lakeside v. Oregon, 435 U.S. 333 (1978)

CERTIORARI TO THE SUPREME COURT OF OREGON

Syllabus

1. The giving by a state trial judge, over a criminal defendant’s objection, of a cautionary instruction that the jury is not to draw any adverse inference from the defendant’s decision not to testify in his behalf does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. Pp. 336-341.

(a) Though in Griffin v. California, 380 U.S. 609, the Court stated that "comment on the refusal to testify" violates the constitutional privilege, the Court was there concerned only with adverse comment, whereas here the very purpose of the instruction is to remove from the jury’s deliberations any influence of unspoken adverse inferences. Pp. 338-339.

(b) Petitioner’s contention that such an instruction may encourage adverse inferences in a trial like his, where the defense was presented through several witnesses, would require indulgence, on which federal constitutional law cannot rest, in the dubious speculative assumptions (1) that the jurors have not noticed defendant’s failure to testify and will not therefore draw adverse inferences on their own; and (2) that the jurors will totally disregard the trial judge’s instruction. Pp. 339-340.

2. The challenged instruction does not deprive the objecting defendant of his right to counsel by interfering with his attorney’s trial strategy. To hold otherwise would implicate the right to counsel in almost every permissible ruling of a trial judge if made over the objection of the defendant’s lawyer. Pp. 341-342.

277 Ore. 569, 561 P.2d 612, affirmed.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined in part, post, p. 342. BRENNAN, J., took no part in the consideration or decision of the case.