UNITED STATES SUPREME COURT DECISIONS ON-LINE

At respondent's federal court jury trial, which resulted in his conviction of counts of mail fraud involving arson-related insurance claims, defense counsel urged several times in his closing argument that the Government had not allowed respondent (who did not testify) to explain his side of the story, and had unfairly denied him the opportunity to explain his actions. Out of the jury's presence, the prosecutor objected to defense counsel's remarks and contended that the defense had "opened the door" to commenting upon respondent's failure to testify. The judge agreed and respondent did not object. The prosecutor then, in his rebuttal summation, remarked that respondent "could have taken the stand and explained it to you." Defense counsel did not object and did not request a cautionary instruction, but the judge admonished the jury that no inference could be drawn from a defendant's election not to testify. The Court of Appeals reversed respondent's convictions, holding, inter alia, that the prosecutor's comment had deprived respondent of a fair trial under the Fifth Amendment.

Held: The prosecutor's comment did not violate respondent's Fifth Amendment privilege to be free from compulsory self-incrimination. The trial court reasonably interpreted defense counsel's closing argument remarks to mean that the Government had not allowed respondent to explain his side of the story either before or during trial. The prosecutor's statement that respondent could have explained his story to the jury did not, in the light of defense counsel's comments, infringe upon respondent's Fifth Amendment rights. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, or to treat the defendant's silence as substantive evidence of guilt, Griffin v. California, 380 U. S. 609, holds that the privilege against compulsory self-incrimination is violated. But where, as in this case, the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by the defendant or his counsel, there is no violation of the privilege. Pp. 485 U. S. 30-34.

794 F.2d 1132, reversed.

REHNQUIST, C.J.,delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed an clubjuris

Page 485 U. S. 26

opinion concurring in part and dissenting in part. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 485 U. S. 37. KENNEDY, J., took no part in the consideration or decision of the case.