A judge in a state criminal trial can tell a jury to draw no adverse inference from a defendant's refusal to testify in his own behalf even if the accused objects to such a jury instruction, the Supreme Court ruled yesterday.
The instruction does not violate the protection against compulsory self-incrimination guaranteed by the Constitution, Justice Potter Stewart wrote for a 6-to-2 majority.
The court also held that the instruction did not deny the constitutional right to the assistance of a lawyer.
That right "has never been understood to veto the wholly permissible actions of the trial judge," Stewart said.
In the dissenting opinion, Justice John Paul Stevens said that for even the most conscientious jurors "the connection between silence and guilt if often too direct and too natural to be resisted. When the jurors have in fact overlooked it, telling them to ignore the defendant's silence is like telling them not to think of a white bear." Stevens' dissent was joined by Justice Thurgood Marshall.
The case involved the trial in Portland, Ore., of Ensio R. Lakeside on a charge of leaving a minimum security jail on an overnight pass and failing to return.
Out of the jurors' hearing, the judge told Lakeside's lawyer that he planned, under state law, to instruct the panel that Lakeside had chosen not to take the stand, but that "this must not be considered by you in determining the question of guilt or innocence."
The lawyer objected futilely, protesting to the judge afterward that the instruction was "like waving a red flag in front of the jury . . ." The jury convicted Lakeside.
The ruling goes beyond a 1965 Supreme Court decision preventing a judge from telling a jury that a defendant's failure to testify supports an unfavorable inference against him. Stewart emphasized that the judge's instruction in the Lakeside case was not unfavorable.
As to Lakeside's overruled objection to the instruction, Stewart said it rests on dubious "speculative assumptions," that the jurors didn't notice his silence and will disregard the admonition to give no weight to it.
The majority said the purpose of the instruction in the Lakeside case was to caution the jurors from drawing an unfavorable inference from his silence, and that it would be "strange indeed" to conclude that it violated "the very constitutional provision it is intended to protect."
In a separate case involving the Navajo Tribe, the court ruled 8 to 0 that the protection against double jeopardy was not violated when a federal court tried a member for a crime already punished by a tribal court. The reason: the tribe acted under an "inherent tribal sovereignty" that did not derive from the separate sovereignty of the federal government.