Supreme Court Considers the Death of the 5thAmendment

One of the foundations of our civil rights is that you have the right not to testify against yourself, and that asserting this right cannot be used against you.

In other words, not testifying cannot be used against you, whether in the trial or in the sentencing, except it appears in the punishment phase of a death penalty case:

As in many recent cases applying limits on relief contained in the Anti-Terrorism and Effective Death Penalty Act’s text (AEDPA, 28 U.S.C. §2254(d)(1)), Wednesday’s argument in White v. Woodall involved mind-numbing hairsplitting. On the state’s side, Susan Lenz, an attorney in the office of Kentucky’s attorney general, sought to explain why Woodall’s entitlement to a “no-adverse-inference” instruction at the punishment phase of his capital trial was not “clearly established” at the time the Kentucky courts rejected his constitutional claim. Yes, the Supreme Court had held that the Fifth Amendment entitles a defendant to a no-adverse-inference instruction at trial (Carter v. Kentucky). Yes, the Court had announced that the right against self-incrimination applies in punishment as well as trial proceedings (Estelle v. Smith). And, yes, the Court had reversed a sentence where a trial court had actually made an adverse inference regarding a contested fact based on a defendant’s silence at sentencing (Mitchell v. United States). But here, Lenz argued, the defendant sought a no-adverse-inference instruction when he had conceded all of the facts concerning his death eligibility. Because the state had already satisfied its burden of proof, the defendant’s silence would not be used to make the state’s case.

Kentucky is arguing that a refusal to testify can be used as affirmative evidence of lack of remorse, and hence used to sentence him to death.

Delightful.

Here's hoping that the Supreme Court makes the right decision, but I doubt it.