John Marshall Harlan II

“ I agree with the Court that within the federal judicial system the Fifth Amendment bars adverse comment by federal prosecutors and judges on a defendant's failure to take the stand in a criminal trial, a right accorded him by that amendment. ”

“ Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, that the Fifth Amendment applies to the States in all its refinements, I see no legitimate escape from today's decision and therefore concur in it. I do so, however, with great reluctance, since for me the decision exemplifies the creeping paralysis with which this Court's recent adoption of the 'incorporation' doctrine is infecting the operation of the federal system. See my opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400. ”

“ While I would agree that the accusatorial rather than inquisitorial process is a fundamental part of the 'liberty' guaranteed by the Fourteenth Amendment, my Brother STEWART in dissent, post, this page, fully demonstrates that the nocomment rule 'might be lost, and justice still be done,' Palko v. ”