Mitchell v. United States, 526 U.S. 314, 15 (1999)

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328

MITCHELL v. UNITED STATES

Opinion of the Court

normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted. Griffin v. California, 380 U. S. 609, 614 (1965). We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime.

This Court has recognized "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them," Baxter v. Palmigiano, 425 U. S. 308, 318 (1976), at least where refusal to waive the privilege does not lead "automatically and without more to [the] imposition of sanctions," Lefkowitz v. Cunningham, 431 U. S. 801, 808, n. 5 (1977). In ordinary civil cases, the party confronted with the invocation of the privilege by the opposing side has no capacity to avoid it, say, by offering immunity from prosecution. The rule allowing invocation of the privilege, though at the risk of suffering an adverse inference or even a default, accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed. Another reason for treating civil and criminal cases differently is that "the stakes are higher" in criminal cases, where liberty or even life may be at stake, and where the government's "sole interest is to convict." Baxter, 425 U. S., at 318-319.

Baxter itself involved state prison disciplinary proceedings which, as the Court noted, "are not criminal proceedings" and "involve the correctional process and important state interests other than conviction for crime." Id., at 316, 319. Cf. Ohio Adult Parole Authority v. Woodard, 523 U. S. 272 (1998) (adverse inference permissible from silence in clemency proceeding, a nonjudicial postconviction process which is not part of the criminal case). Unlike a prison disciplinary proceeding, a sentencing hearing is part of the criminal case—the explicit concern of the self-incrimination privilege. In accordance with the text of the Fifth Amendment, we

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