332
Scalia, J., dissenting
become "an essential feature of our legal tradition." Ante, at 330. Although the latter assertion strikes me as hyperbolic, the former may be true—which is adequate reason not to overrule these cases, a course I in no way propose. It is not adequate reason, however, to extend these cases into areas where they do not yet apply, since neither logic nor history can be marshaled in defense of them. The illogic of the Griffin line is plain, for it runs exactly counter to normal evidentiary inferences: If I ask my son whether he saw a movie I had forbidden him to watch, and he remains silent, the import of his silence is clear. Indeed, we have on other occasions recognized the significance of silence, saying that " '[f]ailure to contest an assertion . . . is considered evidence of acquiescence . . . if it would have been natural under the circumstances to object to the assertion in question.' " Baxter v. Palmigiano, 425 U. S. 308, 319 (1976) (quoting United States v. Hale, 422 U. S. 171, 176 (1975)). See also United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 153-154 (1923) ("Conduct which forms a basis for inference is evidence. Silence is often evidence of the most persuasive character").
And as for history, Griffin's pedigree is equally dubious. The question whether a factfinder may draw a logical inference from a criminal defendant's failure to offer formal testimony would not have arisen in 1791, because common-law evidentiary rules prevented a criminal defendant from testifying in his own behalf even if he wanted to do so. See generally Ferguson v. Georgia, 365 U. S. 570 (1961). That is not to say, however, that a criminal defendant was not allowed to speak in his own behalf, and a tradition of expecting the defendant to do so, and of drawing an adverse inference when he did not, strongly suggests that Griffin is out of sync with the historical understanding of the Fifth Amendment. Traditionally, defendants were expected to speak rather extensively at both the pretrial and trial stages of a criminal proceeding. The longstanding common-law principle, nemo
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