Cite as: 526 U. S. 314 (1999)
Scalia, J., dissenting
Justice Scalia, with whom The Chief Justice, Justice OTMConnor, and Justice Thomas join, dissenting.
I agree with the Court that Mitchell had the right to invoke her Fifth Amendment privilege during the sentencing phase of her criminal case. In my view, however, she did not have the right to have the sentencer abstain from making the adverse inferences that reasonably flow from her failure to testify. I therefore respectfully dissent.
I
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." As an original matter, it would seem to me that the threat of an adverse inference does not "compel" anyone to testify. It is one of the natural (and not governmentally imposed) consequences of failing to testify—as is the fact-finder's increased readiness to believe the incriminating testimony that the defendant chooses not to contradict. Both of these consequences are assuredly cons rather than pros in the "to testify or not to testify" calculus, but they do not compel anyone to take the stand. Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his own cross-examined testimony.
Despite the text, we held in Griffin v. California, 380 U. S. 609, 614 (1965), that it was impermissible for the prosecutor or judge to comment on a defendant's refusal to testify. We called it a "penalty" imposed on the defendant's exercise of the privilege. Ibid. And we did not stop there, holding in Carter v. Kentucky, 450 U. S. 288 (1981), that a judge must, if the defendant asks, instruct the jury that it may not sua sponte consider the defendant's silence as evidence of his guilt.
The majority muses that the no-adverse-inference rule has found "wide acceptance in the legal culture" and has even
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