316
Opinion of the Court
is a product not only of Griffin but also of Estelle's conclusion that there is no basis for distinguishing between a criminal case's guilt and sentencing phases so far as the protection of the Fifth Amendment privilege is concerned. There is little doubt that the rule against adverse inferences has become an essential feature of the Nation's legal tradition, teaching that the Government must prove its allegations while respecting the defendant's individual rights. The Court expresses no opinion on the questions whether silence bears upon the determination of lack of remorse, or upon acceptance of responsibility for the offense for purposes of a downward adjustment under the United States Sentencing Guidelines. Pp. 327-330.
122 F. 3d 185, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and OTMConnor and Thomas, JJ., joined, post, p. 331. Thomas, J., filed a dissenting opinion, post, p. 341.
Steven A. Morley, by appointment of the Court, 525 U. S. 806, argued the cause for petitioner. With him on the briefs was Jeffrey T. Green.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Barbara McDowell, and Joel M. Gershowitz.*
Justice Kennedy delivered the opinion of the Court.
Two questions relating to a criminal defendant's Fifth Amendment privilege against self-incrimination are presented to us. The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered. We hold the plea is not a waiver of the privilege at sentencing. The second question is whether, in determining facts
*Peter Goldberger, Lisa Bondareff Kemler, and Kyle O'Dowd filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.
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