Lead Opinion
delivered the opinion of the Court.
Twо questions relating to a criminal defendant’s Fifth Amendment privilege against self-incrimination are presented to us. The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered. We hold the plea is not a waiver of the privilege at sentencing. The second question is whether, in determining facts
1 — 4
Petitioner Amanda Mitchell and 22 other defendants were indicted for offenses arising from a conspiracy to distribute cocaine in Allentown, Pennsylvania, from 1989 to 1994. According to the indictment, the leader of the conspiracy, Harry Riddick, obtained large quantities of cocaine and resold the drug through couriers and street sellers, including petitioner. Petitioner was charged with one count of conspiring to distribute five or more kilograms of cocaine, in violation of 21 U. S. C. §846, and with three counts of distributing cocaine within 1,000 feet of a school or playground, in violation of § 860(a). In 1995, without any plea agreement, petitioner pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count, and the District Court advised her the drug quantity would be determined at her sentencing hearing.
Before accepting the plea, the District Court made the inquiries required by Rule 11 of the Federal Rules of Criminal Procedure. Informing petitioner of the penalties for her offenses, the District Judge advised her, “the range of punishment here is very complex because we don’t know how much cocaine the Government’s going to be able to show you were involved in.” App. 39. The judge told petitioner she faced a mаndatory minimum of one year in prison under § 860 for distributing cocaine near a sehool or playground. She also faced “serious punishment depending on the quantity involved” for the conspiracy, with a mandatory minimum of 10 years in prison under §841 if she could be held responsible for at least 5 kilograms but less than 15 kilograms of cocaine. Id., at 42. By pleading guilty, the District Court explained,
After the Government explained charges, the judge, having put petitioner under oath, asked her, “Did you do that?” Petitioner answered, "Some of it.” Id., at 47. She indicated that, although present for one of the transactions charged as a substantive cocaine distribution count, she had not herself delivered the cocaine to the customer. The Government maintained she was liable nevertheless as an aider and abettor of the delivery by another courier. After discussion with her counsel, petitioner reaffirmed her intention to plead guilty to all the charges. The District Court noted she might have a defense to one count on the theory that she was present but did not aid or abet the transaction. Petitioner again confirmed her intention to plead guilty, and the District Court accepted the plea.
In 1996, to trial. Three other codefendants had pleaded guilty and agreed to cooperate with the Government. They testified petitioner was a regular seller for ringleader Riddick. At petitioner’s sentencing hearing, the three adopted their trial testimony, and one of them furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling llA to 2 ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1998 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. On cross-examination, the codefendant conceded he had not seеn petitioner on a regular basis during the relevant period.
Both petitioner and mony by one Alvitta Mack, who had made a series of drug buys under the supervision of law enforcement agents, including three purchases from petitioner totaling two ounces
After this testimony at the sentencing hearing the District Court ruled that, as a consequence of her guilty plea, petitioner had no right to remain silent with respect to the details of her crimes. The court found credible the testimony indicating petitioner had been a drug courier on a regular basis. Sales of VA to 2 ounces twiee a week for a yеar and a half put her over the 5-kilogram threshold, thus mandating a minimum sentence of 10 years. “One of the things” persuading the court to rely on the testimony of the codefend-ants was petitioner’s “not testifying to the contrary.” Id., at 95.
The District Judge told petitioner:
“ T held it against you that you didn’t come forward today and tell me that you really only did this a couple of times. . . . I’m taking the position that you should come forward and explain your side of this issue.
counsel’s taking the position that you have a Fifth Amendment right not to.... If he’s — if it’s determined by a higher Court that he’s right in that regard, I would be willing to bring you back for resentencing. And if you — if—and then I might take a closer look at the [codefendants’3 testimony.’ ” Id., at 98-99.
The District Court sentenced petitioner to the statutory minimum of 10 years of imprisonment, 6 years of supervised release, and a special assessment of $200.
for the Third Circuit affirmed the sentence.
“Mitchell opened herself up to the full range of possible sentences for distributing cocaine when she was told during her plea colloquy that the penalty for conspiring to distribute cocaine had a maximum of life imprisonment. While her reservation may have put the government to its proof as to the amount of drugs, her declination to testify on that issue could properly be held against her.” Ibid.
The court acknowledged a defendant may plead guilty and retain the privilege with respect to other crimes, but it observed: “Mitchell does not claim that she could be implicated in other crimes by testifying at her sentencing hearing, nor could she be retried by the state for the same offense.” Ibid, (citing 18 Pa. Cons. Stat. § 111 (1998), a statute that bars, with certain exceptions, a state prosecution following a federal conviction based on the same conduct).
Judge Michel concurred, reasoning that any error District Court in drawing an adverse factual inference from petitioner’s silence was harmless because “the evidence amply supported [the judge’s] finding on quantity” even with
Other Circuits to have confronted the issue have held that a defendant retains the privilege at sentencing. See, e. g., United States v. Kuku,
II
The Government maintains that petitioner’s guilty plea was a waiver of the privilege against compelled self-incrimination with respect to all the crimes comprehended in the plea. Wе hold otherwise and rule that petitioner retained the privilege at her sentencing hearing.
A
established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States,
The justifications context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule “would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony,”
We may assume for purposes petitioner had pleaded not guilty and, having taken the stand at a trial, testified she did “some of it,” she could have been cross-examined on the frequency of her drug deliveries and the quantity of cocaine involved. The concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however. The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. Thе Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled self-incrimination upon entry of a guilty plea, including the right to remain silent at sentencing.
no the plea colloquy should entail such an extensive waiver of the privilege. Unlike the defendant taking the stand, who “cannot reasonably claim that the Fifth Amendment gives him ... an immunity from cross-examination on the matters
Federal Rule of Criminal Procedure 11, which governs pleas, contemplate the broad waiver the Government envisions. Rule 11 directs the district court, before accepting a guilty plea, to ascertain the defendant understands he or she is giving up “the right to be tried by a jury and at that trial . . . the right against compelled self-incrimination.” Rule 11(c)(3). The transcript of the plea colloquy in this case discloses that the District Court took care to comply with this and the other provisions of Rule 11. The District Court correctly instructed petitioner: “You have the right at trial to remain silent under the Fifth Amendment, or at your option, you can take the stand and tell the jury your side of this controversy.... If you plead guilty, all of those rights are gone.” App. 45.
nor Court’s explication of it indicates that the defendant consents to take the stand in the sentencing phase or to suffer adverse consequences from declining to do so. Both the Rule and the District Court’s admonition were to the effect that by entry of the plea petitioner would surrender the right “at trial” to invoke the privilege. As there was to be no trial, the warning would not have brought home to petitioner that she was also
Of course, a court may factual basis for a plea by “questioning] the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded.” Rule 11(c)(5). We do not quеstion the authority of a district court to make whatever inquiry it deems necessary in its sound discretion to assure itself the defendant is not being pressured to offer a plea for which there is no factual basis. A defendant who withholds information by invoking the privilege against self-incrimination at a plea colloquy runs the risk the district court will find the factual basis inadequate. At least once the plea has been accepted, statements or admissions made during the preceding plea colloquy are later admissible against the defendant, as is the plea itself. A statement admissible against a defendant, however, is not necessarily a waiver of the privilege against self-incrimination. Rule 11 does not prevent the defendant from relying upon the privilege at sentencing.
Treating a guilty plea as a sentencing would be a grave encroachment on the rights of defendants. At oral argument, we asked counsel for the United States whether, on the facts of this ease, if the Gоvernment had no reliable evidence of the amount of drugs involved, the prosecutor “could say, well, we can’t prove it, but we’d like to put her on the stand and cross-examine her and see if we can’t get her to admit it.” Tr. of Oral Arg. 45. Counsel answered: “[T]he waiver analysis that we have put forward suggests that at least as to the facts surrounding the conspiracy to which she admitted, the Government could do that.” Ibid. Over 90% of federal criminal defendants
that either petitioner’s guilty plea or her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing.
B
The centerpiece of the Third Circuit’s opinion is the idea that the entry of the guilty plea completes the incrimination of the defendant, thus extinguishing the privilege. Where a sentence has yet to be imposed, however, this Court has already rejected the proposition that “ ‘incrimination is complete once guilt has been adjudicated,’ ” Estelle v. Smith,
Appeals cited Wigmore on Evidence for the proposition that upon conviction ‘“criminality ceases; and with criminality the privilege.’”
It is true, as a general rule, that further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to eases in which the sentence has been fixed and the judgment of conviction has become final. See, e.g., Reina v. United States,
Where the sentence may have a legitimate fear of adverse consequences from further testimony. As the Court stated in Estelle: “Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.”
by its terms prevents a person from being “compelled in any criminal case to be a witness against himself.” U. S. Const., Arndt. 5. To maintain that sentencing proceedings are not part of “any criminal ease” is contrary to the law and to common sense. As to the law, under the Federal Rules of Criminal Procedure, a court must impose sentence before a judgment of conviction can issue. See Rule 32(d)(1) (“A judgment of conviction must set forth the plea... and the sentence”); cf. Mempa v. Rhay,
Ill
The Government suggests in a footnote that even if petitioner retained an unwaived privilege against self-incrimination in the sentencing phase of her case, the District Court was entitled, based on her silence, to draw an adverse inference with regard to the amount of drugs attributable to her. Brief for United States 31-32, n. 18. The
This Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them,” Baxter v. Palmigiano,
Baxter itself which, as the Court noted, “are not criminal proceedings” and “involve the correctional process and important state interests other than conviction for crime.” Id., at 316, 319. Cf. Ohio Adult Parole Authority v. Woodard,
сoncerns mandate the rule against negative inferences at a criminal trial apply with equal force at sentencing. Without question, the stakes are high: Here, the inference drawn by the District Court from petitioner’s silence may have resulted in decades of added imprisonment. The Government often has a motive to demand a severe sentence, so the central purpose of the privilege — to protect a defendant from being the unwilling instrument of his or her own condemnation — remains of vital importance.
today is a product of existing precedent, not only Griffin but also by Estelle v. Smith, in which the Court could “discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned.”
from a defendant’s silence in criminal proceedings, including sentencing, is of proven utility. Some years ago the Court expressed concern that “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.” Ullmann v. United States,
By holding petitioner’s silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is s
Dissenting Opinion
with whom The Ghief Justice, Justice O’Connor, and Justice Thomas join, dissenting.
I agree with the Court that Mitchell had the right to invoke her Fifth Amendment privilege during the sentencing phase of her criminal case. In my view, however, she did not have the right to have the sentencer abstain from making the adverse inferences that reasonably flow from her failure to testify. I therefore respeсtfully dissent.
j.
The Fifth Amendment provides that “[n]o person... shall be compelled in any criminal case to be a witness against himself.” As an original matter, it would seem to me that the threat of an adverse inference does not “compel” anyone to testify. It is one of the natural (and not governmentally imposed) consequences of failing to testify — as is the fact-finder’s increased readiness to believe the incriminating testimony that the defendant chooses not to contradict. Both of these consequences are assuredly eons rather than pros in the “to testify or not to testify” calculus, but they do not compel anyone to take the stand. Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his own cross-examined testimony.
Despite the text, we held in Griffin v. California,
The majority muses that the no-adverse-inference rule has found “wide acceptance in the legal culture” and has even
And as for history, Griffin’s The question whether a factfinder may draw a logical inference from a criminal defendant’s failure to offer formal testimony would not have arisen in 1791, because common-law evidentiary rules prevented a criminal defendant from testifying in his own behalf even if he wanted to do so. See generally Ferguson v. Georgia,
Pretrial procedure in colonial America was governed (as it had been for centuries in England) by the Marian Committal Statute, which provided:
“[S]uch Justices or Justice [of the peace] before whom any person shall be brought for Manslaughter or Felony, or for suspicion thereof, before he or they shall commit or send such Prisoner to Ward, shall take the examination of such Prisoner, and information of those that bring him, of the fact and circumstance thereof, and the same or as much thereof as shall be material to prove the Felony shall put in writing, within two days after the said examination. ...” 2 & 3 Philip & Mary, eh. 10 (1555).
The justice of the peace testified at trial as to the content of the defendant’s statement; if the defеndant refused to speak, this would also have been reported to the jury. Langbein, The Privilege and Common Law Criminal Procedure, in The Privilege Against Self-Incrimination 82, 92 (R. Helmholz et al. eds. 1997).
At trial, defendants were expected to speak directly to the jury. Sir James Stephen described 17th- and 18th-century English trials as follows:
“[T]he prisoner in cases of felony could not be defended by counsel, and had therefore to speak for himself. He was thus unable to say . . . that his mouth was closed. On the contrary his mouth was not only open, but the evidence given against him operated as so much indirect questioning, and if he omitted to answer the questions it suggested he was very likely to be convicted.” J. Ste*334 phen, 1 History of the Criminal Law of England 440 (1888).
See also J. Beattie, Crime and the Courts in England: 1660-1800, pp. 348-349 (1986) (“And the assumption was clear that if the case against him was false the prisoner ought to say so and suggest why, and that if he did not speak that could only be because he was unable to deny the truth of the evidence”); 2 W. Hawkins, Pleas of the Crown, ch. 39, §2 (8th ed. 1824) (confirming that defendants were expected to speak in their own defense at trial). Though it is clear that adverse inference from silence was permitted, I have been unable to find any case adverting to that inference in upholding a convietion — whieh suggests that defendants rarely thought it in their interest to remain silent. See Langbein, supra, at 95-96.
No one, however, seemed to with the principle of nemo tenetur seipsum prodere. And there is no indication whatever that criminal procedure in America made an abrupt about-face when this principle was ratified as a fundamental right in the Fifth Amendment and its state-constitution analogues. See Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege Against Self-Incrimination, supra, at 139-140. Justices of the peace continued pretrial questioning of suspects, whose silence continued to be introduced against them at trial. See, e. g., Fourth Report of the Commissioners on Practice and Pleadings in New York— Code of Criminal Procedure xxviii (1849); 1 Complete Works of Edward Livingston on Criminal Jurisprudenсe 356 (1873). If any objection was raised to the pretrial procedure, it was on the purely statutory ground that the Marian Committal Statute had no force in the new Republic. See, e. g., W. Hen-ing, The Virginia Justice: Comprising the Office and Authority of a Justice of the Peace 285 (4th ed. 1825). And defendants continued to speak at their trials until the assistance of counsel became more common, which occurred gradually
The Griffin question did not arise until States began enacting statutes providing that criminal defendants were competent to testify under oath on their own behalf. Maine was first in 1864, and the rest of the States and the Federal Government eventually followed. See 2 J. Wigmore, Evidence § 579 (3d ed. 1940). Although some of these statutes (including the federal statute, 18 U. S. C. § 3481) contained a clause cautioning that no negative inference should be drawn from the defendant’s failure to testify, disagreement with this approach was sufficiently widespreаd that, as late as 1953, the Uniform Rules of Evidence drafted by the National Conference of Commissioners on Uniform State Laws provided that “[i]f an accused in a criminal action does not testify, counsel may comment upon [sic] accused’s failure to testify, and the trier of fact may draw all reasonable inferences therefrom.” Uniform Rule of Evidence 23(4). See also Model Code of Evidence Rule 201(3) (1942) (similar).
Whatever the merits of prohibiting adverse inferences as a legislative policy, see ante, at 329-330, the text and history of the Fifth Amendment give no indication that there is a federal constitutional prohibition on the use of the defendant’s silence as demeanor evidence. Our hardy forebears, who thought of compulsion in terms of the rack and oaths forced by the power of law, would not have viewed the drawing of a commonsense inference as equivalent pressure. And it is implausible that the Americans of 1791, who were subject to adverse inferences for failing to give unsworn testimony, would have viewed an adverse inference for failing to give sworn testimony as a violation of the Fifth Amendment. Nor can it reasonably be argued that the new statutes somehow created a “revised” understanding of the Fifth Amendment that was incorporated into the Due Process Clause of the Fourteenth Amendment, since only nine States (and not the Federal Government) had enacted competency statutes
The Court’s decision in Griffin, however, tend to be rooted in a historical understanding of the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional command, quoting a passage from an earlier opinion describing the benevolent purposes of 18 U. S. C. § 3481, and then decreeing, with literally nothing to support it: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected.”
II
The Court asserts that it will not “adopt an exception” to Griffin for the sentencing phase of a criminal case. Ante, at 328. That characterization of what we are asked to do is evidently demanded, in the Court’s view, by the very text of the Fifth Amendment: The phrase “any criminal case” requires us to “accord the privilege the same protection in the sentencing phase ... as that which is due in the trial phase of the same case.” Ante, at 329. That is demonstrably not so.
The Court asserts that refusing to apply Griffin would “truncate” our holding in Estelle v. Smith,
Consistency with other areas of our jurisprudence points in the same direction. We have permitted adverse inferences to be drawn from silence where the consequence is a
Which brings me to the greatest — the consistency of all: the combination of the rule that the Court adopts today with the balance of our jurisprudence relating to sentencing in particular. “[Cjourts in this country and in England,” we have said, have “practiced a policy under which a sentencing judge [can] exercise a wide discretion in the sources and types of evidence used to assist him in de
If, on the other hand, fullness of time and after a decent period of confusion in the lower courts — that the extension of Griffin announced today is not limited to “determining facts of the offense,” then it will have created a system in which we give the sentencing judge access to all sorts of out-of-court evidence, including the most remote hearsay, concerning the character of the defendant, his prior misdeeds, his acceptance of responsibility and determination to mend his ways, but declare taboo the most obvious piece of firsthand evidence standing in front of the judge: the defendant’s refusal to cooperate with
The patent inadequacy of both of these courses with regard to determining matters other than the “facts of the offense” is not finessed by simply resolving, for the time being, not to choose between them. Sooner or later the choice must be made, and the fact that both alternatives are unsatisfactory cries out that the Court’s extension of Griffin is a mistake.
rule against adverse infеrences from silence, even in sentencing proceedings, “is of proven utility.” Ante, at 329. Significantly, however, the only utility it proceeds to describe — that it is a “vital instrument” for teaching jurors that “the question in a criminal case is not whether the defendant committed the acts of which he is accused,” but rather “whether the Government has carried its burden to prove its allegations” — is a utility that has no bearing upon sentencing, or indeed even upon the usual sentence?*, which is a judge rather than a jury. Ante, at 330.
* * *
Though the Fifth Amendment protects Mitchell from being compelled to take the stand, and also protects her, as we have held, from adverse inferences drawn from her silence at the guilt phase of the trial, there is no reason why it must also shield her from the natural and appropriate consequences of her uneooperativeness at the sentencing stage. I respectfully dissent.
Notes
The statutes prohibiting an adverse inference were: 1866 Mass. Acts, ch. 260; 1866 Vt. Laws No. 40; 1867 Nev. Stats., ch. XVIII; 1867 Ohio Leg. Acts 260; 1868 Conn. Laws, ch. XCVI; 1868 Minn. Laws, ch. LXX. The statutes not prohibiting an adverse inference were: 1864 Me. Acts, ch. 280; 1866 Cal. Stats., ch. DCXLIV; 1866 S. C. Acts No. 4780.
Even at trial, I might note, we have not held the “no adverse inference” rule to be absolute. One year after Griffin v. California,
Dissenting Opinion
dissenting.
Justice Scalia’s dissenting opinion persuasively demonstrates that this Court’s decision in Griffin v. California,
As Justice Scalia notes, is plain” and its historical “pedigree is equally dubious.” Ante, at 332 (emphasis added). Not only does Griffin fail to withstand a proper constitutional analysis, it rests on an unsound assumption. Griffin relied partly on the premisе that comments about a defendant’s silence (and the inferences drawn therefrom) penalized the exercise of his Fifth Amendment privilege. See Griffin, supra, at 614; Carter, supra, at 301. As the dissenting Justices in Griffin rightly observed, such comments or inferences do not truly “penalize” a defendant. See
We have previously recognized that stare decisis is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini v. Felton,
I also agree with Justice Scalia, ante, at 336, that Griffin improperly-relied on a prior decision interpreting a federal statute to inform its resolution of a constitutional question — an error the Court later repeated in Carter. See Griffin v. California,