Hastie, Chief Judge, and McLaughlin and Van Dusen, Circuit Judges. Hastie, Chief Judge, and McLaughlin, Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges. Adams, Circuit Judge (concurring). Gerald McLaughlin, Circuit Judge (dissenting).
The district court denied relief to the appellant, a state prisoner serving a sentence under a New Jersey rape conviction, who sought a writ of habeas corpus on the ground that at his trial his failure to testify had been used against him in violation of his privilege against self-incrimination. Both the prosecutor and the trial judge had told the jury that the failure of the accused to testify might be used as evidence against him.
In 1965, the Supreme Court held that "the Fifth Amendment * * * forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106. The Appellant's conviction occurred on June 15, 1964, but the case was still pending in the New Jersey courts on direct appeal in 1966. This chronology impels us to consider preliminarily whether the rule of the Griffin case applies to this case.
Tehan v. Shott, 1966, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453, holds that the Griffin rule does not control cases in which conviction had become final before the Griffin decision. But at the same time a situation indistinguishable from the present case was before the Court in O'Connor v. Ohio, 1965, 382 U.S. 286, 86 S. Ct. 445, 15 L. Ed. 2d 337 and was remanded for reconsideration in the light of Griffin. Later, O'Connor's case was reviewed again, 1966, 385 U.S. 92, 87 S. Ct. 252, 17 L. Ed. 2d 189, and the Court made explicit the reach of Griffin, saying:
"It is clear the prospective application of that [ Griffin ] rule, announced in Tehan v. Shott, 382 U.S. 406 [86 S. Ct. 459, 15 L. Ed. 2d 453], does not prevent petitioner from relying on Griffin, since his conviction was not final when the decision in Griffin was rendered. Indeed, in Tehan we cited our remand of petitioner's [O'Connor's] case as evidence that Griffin applied to all convictions which had not become final on the date of the Griffin judgment. 382 U.S., at 409, n. 3, 86 S. Ct. , at 461." 385 U.S. at 93, 87 S. Ct. at 253.
To the same effect, in Johnson v. New Jersey, 1966, 384 U.S. 719, 732, 86 S. Ct. 1772, 16 L. Ed. 2d 882, the Court said:
"Decisions prior to * * * Tehan had already established without discussion that * * * Griffin applied to cases still on direct appeal at the time [it was] announced. See * * * 382 U.S., at 409, n. 3, 86 S. Ct. , at 461."
Thus, the 1965 constitutional pronouncement in Griffin is applicable to Mitchell's conviction which did not become final until 1966.
Indeed, in the unreported decision of the New Jersey Superior Court, Appellate Division, sustaining Mitchell's conviction, the court recognized that the Griffin rule was applicable. Accord, State v. Lanzo, 1965, 44 N.J. 560, 210 A.2d 613. The conviction was sustained on the theory, to be discussed later in this opinion, that Mitchell had waived his privilege against self-incrimination.
We now consider whether the conduct of the judge and the prosecutor at appellant's trial was inconsistent with the Griffin rule. At that time the law of New Jersey permitted such comment and such a charge as the Griffin decision was soon to proscribe. Accordingly, in his argument to the jury defense counsel anticipated unfavorable comment by the prosecutor and in the judge's charge upon his client's failure to testify. He told the jury that it was on his advice that the accused had elected not to testify and argued that no unfavorable inference should be drawn from that circumstance. His anticipation was well founded, for in his summation the prosecutor told the jury: "you are entitled also under the law of this state to consider if you desire, that Esaw Mitchell's failure to take the stand was because he couldn't deny the incriminatory evidence proved against him. * * *" Thereafter, the court charged the jury that "* * * by his silence the jury may infer that he [the accused] could not truthfully deny the charge." Thus, both the judge and the prosecutor did precisely what the Griffin decision holds they may not do without prejudicial violation of a fundamental constitutional privilege of the accused. However, the appellee attempts to avoid this conclusion by arguing that the conduct of the accused and his counsel during the course of the trial should be given effect as a waiver of his privilege against self-incrimination.
In Caminetti v. United States, 1917, 242 U.S. 470, 494-495, 37 S. Ct. 192, 61 L. Ed. 442, the Supreme Court held that when an accused takes the stand and testifies to refute part of the proof against him, his silence with regard to other damaging evidence as to matters within his knowledge is subject to adverse comment. In the present case, Mitchell neither testified nor called any witness. However, at the request of his counsel during cross-examination of a witness called by a co-defendant, Mitchell rose and stood before the jury next to the witness, who himself had previously been convicted as a participant in the crime of which defendant was now accused, to demonstrate a resemblance. The appellee characterizes this participation in a demonstration as a "testimonial act," equivalent to the defendant's verbal testimony in the Caminetti case. It is argued that this demonstration is like testimony in that it was intended to refute the state's evidence against the accused. But all relevant evidence introduced by the defense, whether demonstrative or verbal, is at least intended to refute the state's proof. This common purpose does not justify characterizing a physical demonstration as "testimonial." Moreover, technically Mitchell rested without offering any evidence whatever. The demonstration in question occurred during cross examination of a witness called by another party.
In applying the Self-Incrimination Clause of the Fifth Amendment, the Supreme Court has recognized a controlling distinction between real or physical evidence obtained from a defendant's person and that which is testimonial. The Court has upheld action by the state compelling an accused to submit to blood tests, Schmerber v. California, 1966, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908; to try on clothing, Holt v. United States, 1910, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, and to exhibit his person for observation, United States v. Wade, 1967, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. In addition, the Court has cited with approval cases holding that the privilege against self-incrimination "offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." United States v. Wade, supra, at 223, 87 S. Ct. at 1930, quoting from Schmerber v. California, supra, 384 U.S. at 764, 86 S. Ct. at 1826. In the present case, the prosecution would clearly have had the right, if it so desired, to require Mitchell to rise from his seat and stand next to the witness then under cross-examination for comparison by the jury. The Self-Incrimination Clause would not have precluded such compulsion precisely because the evidence compelled was not testimonial or communicative. By the same token, voluntary participation by a defendant in such non-testimonial conduct cannot properly be analogized to such testifying as occurred in the Caminetti case.
In State v. Fioravanti, 1965, 46 N.J. 109, 215 A.2d 16, the Supreme Court of New Jersey reasoned that by engaging in a courtroom demonstration an accused implicitly asserts that such variable conditions as height, weight, and hair style have not changed since the date of the crime. But the jury may find the demonstration probative without any such assurance from the demonstrator. Moreover, if an accused, by merely engaging in a courtroom demonstration, is said to testify that his appearance has remained unchanged, then he is likewise forced to testify concerning the constancy of his appearance when he is compelled by the state to make such a demonstration. But such is not the case. See Wade, Schmerber, Holt, supra. The defendant does not testify in either situation. The constancy of his appearance is an inference which the jury may or may not draw from the introduction of the physical evidence itself and is as readily drawn when the presentation of this evidence is by the prosecution as when it is by the defense. In addition, this inference can be rebutted specifically by evidence of a change in the defendant's appearance or by argument during summation.*fn1 In no case should it be given effect as opening the door for a general instruction making the defendant's failure to testify evidence of guilt.
It must be recognized that the foregoing analysis and the conclusion to which it leads seem to contradict the rationale of this court's recent per curiam opinion in United States ex rel. Fioravanti v. Yeager, 1968, 404 F.2d 675. To the extent of such inconsistency, the reasoning of the Fioravanti opinion will not be followed.
The appellee makes a separate contention that the comments by the prosecutor and the charge of the trial judge were proper responses to defense counsel's own comments on Mitchell's failure to testify. We disagree.
In Griffin, the Supreme Court held that the silence of an accused in a criminal action "shall not create any presumption against him." Griffin v. California, supra, 380 U.S. at 613, 85 S. Ct. 1229, at 1232, quoting from Wilson v. United States, 1892, 149 U.S. 60, 66, 13 S. Ct. 765, 37 L. Ed. 650. The comments of Mitchell's counsel in his summation were intended to explain to the jury why Mitchell's failure to testify was not indicative of guilt and should be disregarded. As such, they were in accord with the basic principle enunciated in Griffin and were intended to serve the same salutary purposes as the present New Jersey rule that a defendant in a criminal action is entitled to an instruction that his silence be disregarded. State v. Smith, 1968, 100 N.J.Super. 420, 242 A.2d 49. A correct statement by defense counsel that no unfavorable inference should be drawn from the failure of the accused to testify does not open the door for responses which incorrectly and prejudicially characterize the defendant's silence as evidence of guilt.*fn2
It merits mention at this point that the instant case does not present a situation where the prosecutor only incidentally alluded to defendant's failure to take the stand without characterizing it as evidence of guilt. Such an indirect, limited reference has at times been viewed as harmless, particularly if defense counsel has already brought the accused's silence to the attention of the jury.*fn3 In the present case, the prosecutor, rather than incidentally indicating that Mitchell had failed to take the stand, directly characterized Mitchell's silence as a circumstance that could properly be weighed as evidence of his guilt.
Similarly and even more clearly, the instruction of the trial court cannot be considered a permissible response to the comments of Mitchell's counsel. Research has not disclosed any case in which comments by defense counsel that the defendant's failure to take the stand should not be considered evidence of guilt have been held to open the door for an otherwise improper contrary instruction such as the Griffin case has outlawed. Indeed, many of the cases allowing the prosecutor to respond to comments by defense counsel rely, at least in part, on the fact that the court gave a subsequent remedial instruction emphasizing that the defendant's silence must be disregarded. See United States ex rel. Miller v. Follette, United States v. Heithaus, Babb v. United States, and Baker v. United States, all cited Note 3, supra. In any event, "what the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another." Griffin v. California, supra, 380 U.S. at 614, 85 S. Ct. at 1233.
The present petitioner is entitled to relief by way of habeas corpus because the instruction by the trial court violated the Self-Incrimination Clause of the Fifth Amendment as authoritatively interpreted in the Griffin case. Perhaps somewhat less damaging, but also of constitutional proportions, was the error committed in permitting the prosecutor to characterize the defendant's silence as significant evidence of guilt.
The judgment of the district court will be reversed with direction that a writ of habeas corpus shall issue. But the state shall be privileged to retry the accused within a reasonable time and, pending such retrial, to follow ...