Cite as: 529 U. S. 61 (2000)
Opinion of the Court
at 84 (opinion of Ginsburg, J.). We think the burden is rather upon respondent and the dissent, who assert the un-constitutionality of the practice, to come up with a case in which such urging was held improper. They cannot even produce one in which the practice was so much as challenged until after our decision in Griffin. See, e. g., State v. Cassidy, 236 Conn. 112, 126-127, 672 A. 2d 899, 907-908 (1996); People v. Buckey, 424 Mich. 1, 8-15, 378 N. W. 2d 432, 436- 439 (1985); Jenkins v. United States, 374 A. 2d 581, 583-584 (D. C. 1977). This absence cuts in favor of respondent (as the dissent asserts) only if it is possible to believe that after reading Griffin prosecutors suddenly realized that commenting on a testifying defendant's unique ability to hear prior testimony was a good idea. Evidently, prosecutors were making these comments all along without objection; Griffin simply sparked the notion that such commentary might be problematic.
Lacking any historical support for the constitutional rights that he asserts, respondent must rely entirely upon our opinion in Griffin. That case is a poor analogue, however, for several reasons. What we prohibited the prosecutor from urging the jury to do in Griffin was something the jury is not permitted to do. The defendant's right to hold the prosecution to proving its case without his assistance is not to be impaired by the jury's counting the defendant's silence at trial against him—and upon request the court must instruct the jury to that effect. See Carter v. Kentucky, 450 U. S. 288 (1981). It is reasonable enough to expect a jury to comply with that instruction since, as we observed in Griffin, the inference of guilt from silence is not always "natural or irresistible." 380 U. S., at 615. A defendant might refuse to testify simply out of fear that he will be made to look bad by clever counsel, or fear " 'that his prior convictions will prejudice the jury.' " Ibid. (quoting People v. Modesto, 62 Cal. 2d 436, 453, 398 P. 2d 753, 763 (1965) (en banc)). By contrast, it is natural and irresistible for a jury, in evaluating
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