If a defendant invokes the 5th Amendment privilege and declines to testify, can the prosecution comment on that silence at trial?

Study for the MBE Critical Pass Test. Enhance your knowledge with flashcards and multiple choice questions. Prepare thoroughly for your exam with detailed hints and explanations.

The key idea is that the Fifth Amendment protects a defendant from being compelled to testify, and that protection extends to keeping the defendant’s silence from being used against them. The prosecution may not invite or imply that a defendant is guilty because they chose not to testify. This rule comes from Griffin v. California, which barred any direct or indirect comment on a defendant’s failure to testify, and it was reinforced by Doyle v. Ohio to cover post-arrest silence after a suspect has been warned of rights. Because commenting on silence would pressure the defendant and undermine the privilege, juries may not infer guilt from the fact that the defendant remained silent. So, at trial, the silence cannot be used to bolster the prosecution’s case or to question credibility on that basis.