Cite as: 526 U. S. 314 (1999)
Thomas, J., dissenting
the court. Such a rule orders the judge to avert his eyes from the elephant in the courtroom when it is the judge's job to size up the elephant.
The patent inadequacy of both of these courses with regard to determining matters other than the "facts of the offense" is not finessed by simply resolving, for the time being, not to choose between them. Sooner or later the choice must be made, and the fact that both alternatives are unsatisfactory cries out that the Court's extension of Griffin is a mistake.
The Court asserts that the rule against adverse inferences from silence, even in sentencing proceedings, "is of proven utility." Ante, at 329. Significantly, however, the only utility it proceeds to describe—that it is a "vital instrument" for teaching jurors that "the question in a criminal case is not whether the defendant committed the acts of which he is accused," but rather "whether the Government has carried its burden to prove its allegations"—is a utility that has no bearing upon sentencing, or indeed even upon the usual sentencer, which is a judge rather than a jury. Ante, at 330.
* * *
Though the Fifth Amendment protects Mitchell from being compelled to take the stand, and also protects her, as we have held, from adverse inferences drawn from her silence at the guilt phase of the trial, there is no reason why it must also shield her from the natural and appropriate consequences of her uncooperativeness at the sentencing stage. I respectfully dissent.
Justice Thomas, dissenting.
Justice ScaliaTMs dissenting opinion persuasively demonstrates that this Court's decision in Griffin v. California, 380 U. S. 609 (1965), lacks foundation in the Constitution's text, history, or logic. The vacuousness of Griffin supplies "cause enough to resist its extension." Ante, at 336. And, in my view, it also illustrates that Griffin and its progeny, in-
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