Cite as: 526 U. S. 314 (1999)
Scalia, J., dissenting
throughout the 19th century. See W. Beaney, The Right to Counsel in American Courts 226 (1955).
The Griffin question did not arise until States began enacting statutes providing that criminal defendants were competent to testify under oath on their own behalf. Maine was first in 1864, and the rest of the States and the Federal Government eventually followed. See 2 J. Wigmore, Evidence § 579 (3d ed. 1940). Although some of these statutes (including the federal statute, 18 U. S. C. § 3481) contained a clause cautioning that no negative inference should be drawn from the defendant's failure to testify, disagreement with this approach was sufficiently widespread that, as late as 1953, the Uniform Rules of Evidence drafted by the National Conference of Commissioners on Uniform State Laws provided that "[i]f an accused in a criminal action does not testify, counsel may comment upon [sic] accused's failure to testify, and the trier of fact may draw all reasonable inferences therefrom." Uniform Rule of Evidence 23(4). See also Model Code of Evidence Rule 201(3) (1942) (similar).
Whatever the merits of prohibiting adverse inferences as a legislative policy, see ante, at 329-330, the text and history of the Fifth Amendment give no indication that there is a federal constitutional prohibition on the use of the defend-ant's silence as demeanor evidence. Our hardy forebears, who thought of compulsion in terms of the rack and oaths forced by the power of law, would not have viewed the drawing of a commonsense inference as equivalent pressure. And it is implausible that the Americans of 1791, who were subject to adverse inferences for failing to give unsworn testimony, would have viewed an adverse inference for failing to give sworn testimony as a violation of the Fifth Amendment. Nor can it reasonably be argued that the new statutes somehow created a "revised" understanding of the Fifth Amendment that was incorporated into the Due Process Clause of the Fourteenth Amendment, since only nine States (and not the Federal Government) had enacted competency statutes
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