Commentary by Co-Defendant\u27s Counsel on Defendant\u27s Refusal To Testify: A Violation of the Privilege Against Self-Incrimination?

Currently, the circuits are divided on whether comments by co-defendants\u27 counsel on a defendant\u27s silence impair that defendant\u27s fifth amendment rights. Furthermore, among the circuits that regard such commentary as potentially prejudicial, disagreement exists over the proper test for identifying such comments. This Note asserts that the risk of prejudicing a defendant\u27s fifth amendment rights is too great to allow counsel any comment on a defendant\u27s decision to testify or to remain silent. Part I of this Note examines the historical evolution of the privilege against self-incrimination and the policy goals behind the privilege. The Note argues that prohibiting comments on silence by codefendant\u27s counsel is consistent with the fifth amendment\u27s historical purpose and subsequent interpretation. Part II considers the Supreme Court\u27s decision in Griffin v. California and later decisions concerning commentary on courtroom silence and applies analytical models derived from these decisions to the issue of co-defendant\u27s commentary. Finally, Part III examines the circuit courts\u27 attempts to define a standard for identifying comments made by co-defendant\u27s counsel that prejudice a defendant\u27s privileged silence. This Part concludes by demonstrating the insufficiency of the current tests and by advocating a new standard which prohibits all commentary on the act of testifying or on the limitations imposed on some defendants by another defendant\u27s silence