UNITED STATES OF AMERICA, PETITIONER V. THOMAS O. ROBINSON, JR. No. 86-937 In The Supreme Court Of The United States October Term, 1986 On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Summary of argument Argument: I. The prosecutor's rebuttal did not constitute an unlawfull comment on respondent's failure to testify A. The rule in Griffin prohibits only comments that characterize the defendant's failure to testify as evidence of guilt B. The court of appeals overlooked the context in which the rebuttal comments were made C. The rebuttal comments did not impermissibly burden respondent's exercise of his right not to testify II. The "plain error" doctrine applies to constitutional errors Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 794 F.2d 1132. An earlier opinion of the court of appeals (Pet. App. 15a-27a) is reported at 716 F.2d 1095. JURISDICTION The judgment of the court of appeals (Pet. App. 28a) was entered on July 9, 1986. A petition for rehearing was denied on September 9, 1986 (Pet. App. 29a-30a). On October 28, 1986, Justice Scalia extended the time within which to file a petition for a writ of certiorari to and including December 8, 1986. The petition was filed on December 8, 1986, and was granted on February 23, 1987. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, after defense counsel has argued in summation that the government prevented the defendant from explaining his side of the story, a prosecutor may respond in rebuttal that the defendant was free to testify had he chosen to do so. 2. Whether the "plain error" doctrine applies to errors affecting constitutional rights. STATEMENT After a jury trial in the United States District Court for the Middle District of Tennessee, respondent was convicted on two counts of mail fraud, in violation of 18 U.S.C. 1341. /1/ Each count related to a fire and a subsequent insurance claim. Respondents was sentenced to a five-year term of imprisonment, all but five months and 29 days of which was suspended in favor of a five-year term of probation. J.A. 1-2; Pet. App. 15a-16a. 1. The evidence at trial showed that in early 1979 respondent leased a truck stop in Guthrie, Kentucky. At that time, he purchased a $31,000 fire insurance policy on a wrecker and the contents of the garage at the truck stop. Tr. 309-310, 317-319. Respondent had previously told a man whom he had asked to become a partner in the truck stop that if the business turned out to be unsuccessful, he had a large inventory and could burn it. Tr. 485-487. Throughout 1979, respondent was consistently delinquent in paying his rent, and by September 1979 his business had deteriorated significantly. Tr. 313, 359, 495, 512-513. /2/ On August 30, 1979, respondent increased the insurance coverage on the garage contents from $31,000 to $50,000. Two days, later, on September 1, 1979, there was an explosion and fire in the garage. Respondent subsequently submitted an $80,000 insurance claim for the loss of the wrecker and the contents of the garage and an adjoining office. Tr. 318-319, 341, 344; Pet. App. 10a-11a. The day after the fire, respondent's insurance agent, Aaron Williams, inspected the burned-out areas. Williams observed that tools and equipment he had previously seen in the garage were missing, that respondent's insured wrecker, which was usually parked in front of the truck stop, had been destroyed in the fire, and that respondent's uninsured race car, which was normally kept in the garage, had not been damaged. /3/ Williams also observed that the office area of the garage did not contain the remains of a color television, an adding machine, or a copying machine that respondent later claimed he had lost in the fire. Tr. 322-323. Shortly thereafter, investigators discovered that a large quantity of fire accelerant had been poured on the floor where the fire had started and that a desk in the office area contained no files or debris of any kind. Tr. 442-443, 457-458, 476-484; Pet. App. 11a. During the next several weeks, respondent asked salemen with whom he dealt to prepare false invoices showing that he had purchased an air compressor and more than $10,000 worth of tires, so that he could submit those items as part of his proof of loss to the insurance company. Tr. 410-417, 429-430; GXS 24, 25; Pet. App. 11a. Approximately a year later, respondent's house in Clarksville, Tennessee, was heavily damaged by arson about an hour after respondent had left the premises with a large U-Haul truck filled with most of his household furnishings. Tr. 50-51, 252-260, 267. Firefighters and investigators inspected the premises shortly after the blaze had been extinguished. They discovered that a large, two-handled cooking pot containing gasoline had been left on a lit stove, that an electric fan had been left running near an air vent, and that "rapid rise" gasoline had been spread throughout the house. They also determined that the doors and windows were locked, that the house was sparsely furnished, and that there was nothing in most of the dresser drawers or closets. Tr. 59-60, 64-65, 70-74, 78-85, 91, 99-107, 131-132. The authorities later learned that the home security system had been disconnected prior to the blaze. Tr. 154-156, 214; Pet. App. 11a-12a. During the month preceding the fire at his home, respondent had packed family belongings, moved household furnishings from his house, and held a yard sale that was attended by several neighbors. Tr. 182, 190, 202, 212, 226, 252. Respondent explained to one neighbor that he was moving his family to California, but he told another neighbor that his family was going there for a visit. Tr. 183, 204. /4/ Two or three days before the fire, respondent began loading his household furnishings into a large U-Haul truck with the help of a 17-year-old neighbor, Christopher Edwards. /5/ Edwards also helped respondent move older furniture and appliances from the garage into the house. Tr. 257. The day before the fire, Edwards' 11-year-old brother saw respondent draining gasoline from his race car into a large, two-handled cooking pot. Tr. 232-233. During the early morning hours immediately before the fire, Edwards helped respondent load the truck with clothing, beds, a grandfather clock, a dining room set, a master bedroom set, a microwave oven, and a double-door refrigerator-freezer filled with meat. Tr. 256-266. Edwards remained with respondent and his family until sometime after 3 a.m., when they were ready to leave for California. While Edwards and respondent's family waited outside, respondent remained alone in the house for five to ten minutes. After respondent left the house, he and his family departed in the U-Haul truck and an automobile. An hour later, neighbors discovered that respondent's house was on fire. Tr. 214, 227, 230, 266-267; Pet. App. 12a-13a. Respondent subsequently contacted the company that had insured the Clarksville house. He stated that his family had left Clarksville to vacation in California, but that they had decided to remain there because of the fire. Tr. 135-137. He provided the company with a list of property that had allegedly been lost in the blaze. Tr. 137-139; GX 16. When he was interviewed by investigators the following month, respondent denied that he had set fire to his Clarksville house or that he had removed clothing and most of the furnishings from the house. He claimed that he had simply moved "some things" to California for his daughter, who was attending college there. GX 15. Respondent thereafter mailed the insurance company a proof of loss statement and a claim for $200,00, including a $106,500 personal property claim. Tr. 137-140; GX 18. Property that respondent had included in his insurance claim was later discovered by authorities in his California residence. Tr. 177-178, 183-185, 203, 215-219, 235-243, 260-266, 381; Pet. app. 13a. /6/ The evidence for the defense consisted of the testimony of two of respondent's children (Tr. 515-562, 596-609) and a neighbor (Tr. 562-589) concerning the events surrounding the fires. In addition, respondent had been current in his business dealings. Tr. 589-596. Neither defendant testified. Pet. App. 13a. 2. Petitioner's attorney began his closing argument by contending that the government had breached its duty to be fair to the accused and to "play () straight" with the jury. Tr. 658; J.A. 11. He repeatedly returned to that theme, arguing that the government had unfairly "filtered" the evidence and had used a particular witness in order to "imply something sinister" about respondent's conduct. Tr. 662, 667-668, 674, 676, J.A. 14, 17, 21, 22. In addition, five different times in his summation defense counsel charged that the government had unfairly denied respondent an opportunity to "explain" his actions. Pet. App. 1a-2a. Near the conclusion of his argument, counsel stated (Tr. 671; J.A. 19): Now, would you like to get indicted for that, without the Government being fair, and being able to explain, have him explain before you, members of your own community, rather than before the agents? /7/ Defense counsel also attempted to imply that there were weaknesses in the prosecution's case by pointing out the absence of evidence of "more situations where there have been false claims, rather than one or two for Kentucky" (Tr. 676; J.A. 22). Counsel made that argument even though the prosecution had attempted unseccessfully, on several occasions, to introduce precisely that sort of evidence. Tr. 141-148, 207-208, 351-352. /8/ After the defense summation, the prosecutor objected to defense counsel's argument that the government had not given respondent a chance to "explain." He requested leave to rebut that contention, arguing that the defense had "opened the door" on that issue. Tr. 680-681; J.A. 24-25. Despite ample opportunity to defend his actions or to object to the proposed rebuttal, defense counsel remained silent. The district court ruled that the prosecutor could answer respondent's contention that he had been afforded no opportunity to explain. The court stated (Tr. 681; J.A. 25): Yes. Mr. Washko, I will tell you what, the Fifth Amendment ties the Government's hands in terms of commenting upon defendant's failure to testify. But that tying of hands is not putting you into a boxing match with your hands tied behind your back and allowing him to punch you in the face. That is not what is was intended for and not fair. I will let you say that the defendants had every opportunity, if they wanted to, to explain this to the ladies and gentlemen of the jury. We might get reversed on it. Mr. Durham opened the door not less than four times in his argument on that question. I will let you comment on it in response. Defense counsel made no objection. Pet. App. 2a. /9/ In accordance with the ruling he had obtained from the court, the prosecutor began his closing argument with a rebuttal to the defendant's attack on the government's conduct. The prosecutor's argument included the following (Tr. 685; J.A. 27): (Defense counsel) has made comments to the extent the government has not allowed the defendants an opportunity to explain. It is totally unacceptable. He explained himself away on tape right into an indictment. He explained himself to the insurance investigator, to the extent that he wanted to. He could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain. Defense counsel made no objection to those remarks and did not request any cautionary instructions. The trial court later instructed the jury that a defendant has no burden to produce any evidence and that "no inference whatever may be drawn from the election of a defendant not to testify" (Tr. 694). Defense counsel stated that they had no objection to the court's instructions (Tr. 719-720). Pet. App. 2a-3a. 3. The court of appeals reversed (Pet. App. 15a-27a). Relying on this Court's decision in Griffin v. California, 380 U.S. 609 (1965), the court of appeals held that the prosecution does not have a right to make "direct comment on a defendant's failure to testify * * *, even if defense counsel has baited the prosecutor" (Pet. App. 20a). Moreover, the court held that the error was not cured by the trial court's jury instructions and that, although the government's "evidence is strong," the error was not harmless beyond a reasonable doubt (id. at 25a). /10/ 4. On March 4, 1985, this Court vacated the judgment of the court of appeals and remanded the case with instructions to reconsider the decision in light of United States v. Young, 470 U.S. 1 (1985). See 470 U.S. 1025 (1985). On remand, the court of appeals adhered to its prior judgment (Pet. App. 1a-13a). The court first held that the prosecutor's remarks constituted "a clear violation of the defendant's constitutional right not to testify" (id. at 3a). The court next distinguished Young, holding that the government's summation amounted to plain error. The court reasoned that it was freer to find plain error here, because Young invlved only "ethical" violations, while the prosecutor in this case had violated respondent's constitutional rights (id. at 5a-6a). Moreover, the court stated that the prosecutor's credibility, while in this case the prosecutor's argument "directly placed the defendant's credibility into issue" (id. at 8a (emphasis in original)). Finally, the court determined that the evidence in this case, "though substantial, was not as overwhelming as in Young," a conclusion that the court drew from "(t)he fact that the jury did not find (respondent) guilty on all counts" (ibid.). The court of appeals concluded that because it could not find the prosecutor's remarks harmless beyond a reasonable doubt, plain error had been committed (id. at 9a). Judge Cohn dissented. He agreed that the prosecutor's summation was improper, but he concluded that the evidence at trial was to substantial to warrant a finding that the summation had influenced the jury. He noted that the jury's failure to convict respondent on certain charges suggested that it had not been improperly swayed by the prosecutor's argument. He also expressed doubt that the plain error standard for constitutional violations in summations should be different from the standard applicable to any other violation at trial to which no objection has been made. Pet. App. 10a. SUMMARY OF ARGUMENT I. In Griffin v. California, 380 U.S. 609 (1965), this Court held that a prosecutor's comments on a defendant's failure to testify at trial violated the defendant's Fifth Amendment privilege against compulsory self-incrimination. Purporting to apply the rule in Griffin, the court of appeals in this case concluded that the prosecutor's rebuttal summation constituted "a clear violation of the defendant's constitutional right not to testify" (Pet. App. 3a). The court's analysis is flawed in several respects. First, the rule in Griffin does not prohibit every comment pertaining to a defendant's failure to testify. Rather, it forbids only those comments that ask the jury to treat the defendant's silence as evidence of his guilt. The prosecutor's rebuttal remarks in this case did no such thing. Instead, his remarks simply served to rebut defense counsel's claim that the government had acted unfarily in the case by depriving respondent of an opportunity to respond to the charges against him. Second, the court of appeals ignored the context in which the prosecutor made his remarks. The remarks in this case were made in rebuttal summation, after defense counsel had charged that the government had prevented respondent from testifying. This Court has consistently held that if the trial process is to fulfill its truth-finding mission, a prosecutor must have leeway to respond to a defendant's arguments. The prosecutor's rebuttal was a fair and measured response to defense counsel's repeated attacks on the bona fides of the prosecution; it was not a gratuitous effort to invite the jury to infer that respondent must be guilty because he remained silent at trial. Finally, the court of appeals was mistaken in its implicit assumption that rebuttal comments of this sort will, as in Griffin itself, impermissibly burden a defendant's assertion of his right not to testify. It is difficult to see how the kind of rebuttal made in this case could impose any burden on a defendant's exercise of his rights. And even if some incidental burden were entailed, the truth-finding functions of the trial process plainly outweighed that cost and justified the prosecutor's exercise of the right of fair reply. II. Although defense counsel did not object to the prosecutor's rebuttal remarks, the court of appeals nonetheless held that it was free to review the asserted error when it was raised for the first time on appeal. The court of appeals distinguished this Court's decision in United States v. Young, 470 U.S. 1 (1985), in which this Court held that a similar claim of error did not constitute "plain error" and therefore was waived when it was not raised in the district court. The court of appeals held that it was freer to find plain error in this case because the rebuttal involved a constitutional error, not merely an ethical violation. The court of appeals' distinction between constitutional and non-constitutional errors misapprehends the nature and purposes of the plain error doctrine. That doctrine is a narrow exception to the contemporaneous objection rule, whose purpose is to ensure that objections to alleged errors are made at a time when those errors can still be corrected. There is no reason to exempt constitutional objections from this requirement. The plain error rule, codified in Fed. R. Crim. P. 52(b), permits a reviewing court to overlook the failure to object only when the error seriously affects the "fairness and integrity" of the trial. There is no basis to believe that constitutional errors are, as a categorical matter, more likely than non-constitutional errors to impair the fairness or integrity of the trial process. For that reason, this Court has regularly held that constitutional objections may be lost by the failure to press them at trial. ARGUMENT I. THE PROSECUTOR'S REBUTTAL DID NOT CONSTITUTE AN UNLAWFUL COMMENT ON RESPONDENT'S FAILURE TO TESTIFY A. The Rule In Griffin Prohibits Only Comments That Characterize The Defendant's Failure To Testify As Evidence Of Guilt 1. The court of appeals' initial error in this case stemmed from its apparent belief that the rule in Griffin v. California, 380 U.S. 609 (1965), forbids prosecutors from making any reference at all to a defendant's failure to testify. That is simply not so. Rather, as this Court has made clear, the rule in Griffin prohibits only those comments that "suggest () to the jury that it may treat the defendant's silence as substantive evidence of guilt." Baxter v. Palmigiano, 425 U.S. 308, 319 (1976). The prosecutor's rebuttal argument in this case contained no such suggestion. A close reading of Griffin confirms that the rule in that case is not as broad as the court of appeals suggested. The defendant in Griffin was tried for first-degree murder in a state that permitted the prosecutor to comment upon the defendant's failure to explain or deny any evidence offered against him at trial. When the defendant did not testify, the prosecutor asked the jury to treat the defendant's silence at trial as substantive evidence of his guilt. The trial court added considerable force to the prosecutor's argument by instructing the jury that a defendant "can reasonably be expected to deny or explain * * * facts within his knowledge," and that if he "fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence" (380 U.S. at 610). This Court reversed Griffin's conviction. To permit comments of that sort, the Court held, would "allow () the State the privilege of tendering to the jury for its consideration the failure of the accused to testify" (380 U.S. at 613). Such a practice "solemnizes the silence of the accused into evidence against him" (id. at 614). Moreover, the Court held, comment on the failure of a defendant to testify "is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Ibid. By its terms, the Griffin case forbids only comments that "solemnize () the silence of the accused into evidence against him" (380 U.S. at 614). The Court confirmed this limiting principle in Likeside v. Oregon, 435 U.S. 333 (1978). There, the Court held that a defendant's rights under Griffin were not violated when the trial court, over the defendant's objection, instructed the jury not to draw any adverse inference from the defendant's failure to testify. The defendant, who wanted the trial court not to refer at all to his failure to take the stand, argued -- much as the court of appeals held in this case -- that Griffin forbids any comment on silence. The Court disagreed, stressing that the scope of Griffin cannot be divorced from the Fifth Amendment premises underlying that decision. A necessary element of compulsory self-incrimination, the Court noted, "is some kind of compulsion" (435 U.S. at 339 (citation omitted)); and in Griffin, the Court stated, "unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant's failure to take the witness stand" (ibid.). But the judge's instruction in Lakeside -- that the jury should draw no adverse inference from the defendant's exercise of his privilege not to testify -- simply did not put pressure on the defendant to testify. That instruction therfore did not violate the principles of Griffin. Consistent with the guiding premise, the Court has applied the rule in Griffin only where, as in Griffin itself, the prosecutor has asked the jury to infer the defendant's guilt from his failure to testify. See, e.g., Fontaine v. California, 390 U.S. 593 (1968); Anderson v. Nelson, 390 U.S. 523 (1968); Chapman v. California, 386 U.S. 18 (1967). The prosecutor in the present case made no such request of the jury. Indeed, the prosecutor did not comment on respondent's failure to testify; he commented on his freedom to testify, pointing out, in response to defense argument, that the government had not prevented respondent from telling his side of the story. That is simply not the kind of comment proscribed by Griffin. 2. Although we believe that the court of appeals' broad construction of the rule in Griffin v. California is wrong, it is not unprecedented. Several courts of appeals have interpreted the Griffin rule to limit prosecutors' summations with restrictive rules that go far beyond the restriction imposed in Griffin itself. In its most common form, this erroneous interpretation of Griffin has led some courts to adopt a rule forbidding a prosecutor even from characterizing the evidence at trial as "uncontradicted" or "unrefuted." The First Circuit, purportedly under the authority of Griffin, has flatly prohibited prosecutors from describing the government's proof in these terms. See, e.g., United States v. Skandier, 758 F.2d 43, 44 (1985) ("(f)or twenty years we have held it reversible error to state baldly that the government's evidence was uncontradicted"); United States v. Cox, 752 F.2d 741, 745 (1985); Desmond v. United States, 345 F.2d 225, 227 (1965). The Seventh Circuit has imposed the same restriction, at least in cases in which the defendant may be the only witness who could have "condtradicted" the government's proof. See, e.g., United States ex rel. Burke v. Greer, 756 F.2d 1295, 1300-1301 (1985); United States v. Wilkins, 659 F.2d 769, 774, cert. denied, 454 U.S. 1102 (1981); United States v. Poole, 379 F.2d 645, 649 (1967) (error to describe evidence as "uncontradicted" even where a witness other than the defendant could have contradicted it). Several other courts have imposed similar restictions, again relying on Griffin. See, e.g., Raper v. Mintzes, 706 F.2d 161, 164-167 (6th Cir. 1983); Runnels v. Hess, 653 F.2d 1359, 1361-1362 (10th Cir. 1981); United States v. Sanders, 547 F.2d 1037, 1042-1043 (8th Cir. 1976), cert. denied, 431 U.S. 956 (1977). Some state courts have likewise read Griffin to preclude prosecutors from characterizing the government's proof as "uncontradicted." See, e.g., Todd v. State, 598 S.W.2d 286, 294 (Tex. Crim. App. 1980); State v. Messinger, 8 Wash. App. 829, 840, 509 P.2d 382, 390 (1973), cert. denied, 415 U.S. 926 (1974); Ross v. State, 268 Ind. 471, 474, 376 N.E.2d 1117, 1118 (1978), cert. denied, 439 U.S. 1080 (1979); but see People v. Ganter, 56 Ill. App. 3d 316, 326, 371 N.E.2d 1072, 1079 (1977). We believe that the expansive reading of Griffin to prohibit a prosecutor from characterizing evidence as "uncontradicted," like the court of appeals' ruling in this case, reflects a misunderstanding of the intended scope of Griffin. While the rule in Griffin was designed to reduce the pressures on a defendant to testify, the rule cannot fairly be read to shield the defendant from all the consequences of his failure to take the stand. The government, which bears the burden of proof beyond a reasonable doubt, should not be prohibited from describing its proof at trial as uncontradicted simply because the absence of contradiction results in part from the defendant's failure to testify. Otherwise, as Justice Stevens observed in United States v. Hasting, 461 U.S. 499, 515 (1983) (Stevens, J., concurring in judgment), "the protective shield of the Fifth Amendment (w)ould be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case." See also United States v. Rodriquez, 556 F.2d 638, 642 (2d Cir. 1977), cert. denied, 434 U.S. 1062 (1978). The same rational applies to this case. The Griffin rule prohibits only the suggestion that the defendant is probably guilty because he did not take the stand. It does not prohibit the prosecutor from pointing out that the weight of the evidence -- or even all the evidence -- favors the government's theory of the case. And it surely does not prohibit the government from defending itself against the charge that the government has distorted the truth-finding process by preventing the defendant from presenting his side of the story. In short, the court of appeals gave the rule in Griffin an expansive reading that the rational of that case does not justify. B. The Court Of Appeals Overlooked The Context In Which The Rebuttal Comments Were Made The court of appeals ignored a second, related limitation on the rule in Griffin: whether a prosecutor's remarks are proscribed by Griffin depends on the context in which the remarks are made. In Lockett v. Ohio, 438 U.S. 586, 594-595 (1978), for example, the defendant contended that the prosecutor violated Griffin when he characterized the government's evidence as "unrefuted" and "uncontradicted." This Court rejected the Griffin claim. The Court noted that, unlike in Griffin, it was defense counsel who had first focused the jury's attention on defendant's failure to testify. The Court held that in the context the prosecutor's argument did not constitute a violation of the principles of Griffin. The decision in Lockett reflects the basic proposition -- overlooked by the court of appeals in this case -- that the rules that constrain the government in its direct case do not necessarily apply to matters of rebuttal and impeachment. If the law were otherwise, the Court has held, "the shield provided by (constitutional decisions could) be perverted into a license to use perjury by way of a defense" (Harris v. New York, 401 U.S. 222, 226 (1971)). "(U)nless prosecutors are allowed wide leeway in the scope of impeachment * * * (,) some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge." Doyle v. Ohio, 426 U.S. 610, 617 n.7 (1976). /11/ The jury can properly discharge its function of "evaluating the truth of (a defendant's) testimony" (Tennessee v. Street, 471 U.S. 409, 415 (1985)) only if the government is allowed the freedom to respond to defense arguments that would otherwise be misleading. That freedom necessarily extends to arguments that would be improper if they were made not in response to a defense argument, but as part of the government's opening summation. The Court applied this principle, in a closely analogous setting, in Raffel v. United States, 271 U.S. 494 (1926). The defendant in that case was tried twice. At the first trial, a government agent testified that the defendant had made an inculpatory statement. The defendant did not testify. After the first trial ended in deadlock, the defendant was retried and this time elected to testify. On cross-examination, the prosecutor elicited the fact that the defendant had not testified at the first trial. Although it was by then firmly established that in the federal system a prosecutor may not comment upon a defendant's failure to take the stand (18 U.S.C. 3481; Wilson v. United States, 149 U.S. 60 (1893)), the Court held that the inquiry into the defendant's prior silence did not violate his Fifth Amendment rights. The Court stated that when a defendant takes the stand, "he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined" (271 U.S. at 497). Because the Court concluded that the defendant's silence at the first trial might reflect on the credibility of his testimony at the second trial (271 U.S. at 498), the Court permitted the inquiry. /12/ The Court has applied this principle in a variety of settings, repeatedly holding that a prosecutor enjoys greater leeway in impeachment and rebuttal than in the case-in-chief. /13/ That principle applies with equal force to rebuttal summations. A prosecutor's summation "must be evaluated in light of the defense argument that precede(s) it" (Darden v. Wainwright, No. 85-5319 (June 23, 1986), slip op. 10). If the court concludes that the prosecutor's remarks were "'invited,' and did no more than respond substantially in order to 'right the scale,' such comments would not warrant reversing a conviction" (United States v. Young, 470 U.S. 1, 12-13 (1985) (footnote omitted)). This Court has recognized the need to review a prosecutor's argument in light of the preceding defense argument, both for purposes of determining whether the prosecutor's argument was error at all, and for purposes of determining whether the error requires reversal. In Lawn v. United States, 355 U.S. 339 (1958), for example, the prosecutor commented in his rebuttal summation that the government believed that the two principal government witnesses were telling the truth. The Court concluded that that argument was proper in light of defense counsel's closing argument, in which counsel had argued that the government was persecuting the defendants and that the prosecution was instituted in bad faith, solely at the instance of the investigating agents. 355 U.S. at 359-360 n.15. Even where the Court has found the prosecutor's argument improper, it has assessed the question whether the error is reversible in light of the context of the remarks, and in particular in light of the defense argument to which the prosecutor was responding. In Darden v. Wainwright, for example, the prosecutor implied that only the death penalty could keep the defendant from killing again. The prosecutor also referred to the accused as an "animal" and made several arguments that played on the emotions of the jury. Although the Court regarded these remarks as "offensive" (slip op. 11) and "deserv(ing) (of) condemnation" (id. at 10), it held that the remarks did not deprive the defendant of due process. "Much of the objectionable content," the Court observed (id. at 13), "was invited by or was responsive to the opening summation of the defense." Similarly, in rejecting a challenge to the prosecutor's rebuttal remarks in Young, the Court concluded (470 U.S. at 17-18) that the impact of the rebuttal "was mitigated by the jury's understanding that the prosecutor was countering defense counsel's repeated attacks on the prosecutor's integrity and defense counsel's argument that the evidence established no * * * crime." The Court made it clear (id. at 18) that a prosecutor's rebuttal summation must be considered in the context of "defense counsel's broadside attack." In this light, the Court held, the rebuttal did not cause the jury to "stray from its responsibility to be fair and unbiased" (ibid. (footnote omitted)). Viewed in context, the prosecutor's summation in the present case did not constitute an unfair comment on respondent's failure to testify. By accusing the government, in effect, of having refused to give respondent an opportunity to tell his story -- either before trial or at the trial itself -- defense counsel invited the prosecutor's response. The response, moreover, was brief and narrowly tailored to the invitation. The jury, having heard defense counsel's lengthy jeremiad against the government's tactics, could only have understood the rebuttal in the way it was intended: as a denial that the government had deprived respondent of his chance to tell his side of the story. The court of appeals overlooked the special function of rebuttal and, for the reason, found error where there was none. C. The Rebuttal Comments Did Not Impermissibly Burden Respondent's Exercise Of His Right Not To Testify The court of appeals' assertion that the prosecutor's rebuttal was an unlawful comment on respondent's silence may also rest upon the unarticulated premise that rebuttal of this sort impermissibly burdens the decision not to testify at trial. If that was the premise of the court's ruling, however, it is difficult to see where the impermissible burden arises. In the first place, it seems speculative and even unlikely as an empirical matter that a defendant will be deterred from exercising his right not to testify by the mere possibility that, should his attorney blame the government for the defendant's silence, the prosecutor will be permitted to refute the charge in rebuttal. A defendant has little to fear from a rule that permits comment of this sort, since it takes effect only when defense counsel forces the prosecutor's hand. But even if the kind of rebuttal given in this case could place some burden on the defendant's exercise of his right not to testify, it does not follow that such a burden would be impermissible. The Court has made it clear that the mere fact that a particular rule "has a discouraging effect on the defendant's assertion of his trial rights" does not make that rule unconstitutional (Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973)). Whether a particular burden is excessive "depends both upon the hazards, if any, it presents to the integrity of the privilege and upon the urgency of the public interests it is designed to protect." Garrity v. New Jersey, 385 U.S. 493, 507 (1967) (Harlan, J. dissenting). For example, in Jenkins v. Anderson, 447 U.S. 231 (1980), the Court held that a prosecutor did not unfairly burden a defendant's right to remain silent when he cross-examined the defendant, about his failure to tell his exculpatory story prior to his arrest. The Court stressed (447 U.S. at 236 (quoting Chaffin v. Stynchcombe, 412 U.S. at 30)) that "the Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.'" The Court stated (447 U.S. at 238), moreover, that "(i)n determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice." On the issue, the Court concluded (ibid.), the practice of affording prosecutors wide latitude to impeach defendants, "may enhance the reliability of the criminal process" by "allow(ing) presecutors to test the credibility of witnesses." The Court acknowledged (ibid.) that, as a result of the rule, a defendant "may decide not to take the witness stand." But "this is a choice of litigation tactics" -- not an impermissible burden on a constitutional right. /14/ In the framework established by these cases, an argument such as the prosecutor's rebuttal argument in this case cannot be said impermissibly to burden a defendant's decision whether to testify. A defendant who comtemplates testifying in his own behalf is faced with many analogous -- indeed, considerably more burdensome -- disadvantages. Once he takes the stand, he cannot claim his Fifth Amendment priviledge to avoid cross-examination on matters reasonably related to the subject matter of his direct examination (see, e.g., Brown v. United States, 356 U.S. 148 (1958); Johnson v. United States, 318 U.S. 189, 195 (1943); Fitzpatrick v. United States, 178 U.S. 304, 314-316 (1900)). A testifying defendant may also be impeached by proof of prior convictions (see, e.g., Marshall v. Lonberger, 459 U.S. 422 (1983); Spencer v. Texas, 385 U.S. 554 (1967); Fed. R. Evid. 609), prior inconsistent statements taken in violation of Miranda (Harris v. New York, supra), prior similar acts or instances of conduct relevant to credibility (Fed. R. Evid. 404(b), 608(b)), and general evidence of bias (see United States v. Abel, 469 U.S. 45, 50-51 (1984)). And if the defendant's motion of acquittal at the close of the government's evidence is denied, he risks bolstering the government's case sufficiently to support an otherwise unjustifiable verdict of guilty if he puts on a defense (see, e.g., United States v. Calderon, 348 U.S. 160, 164 (1954)). The fleeting possibility that a prosecutor may refer to the defendant's silence at trail should defense counsel blame the government for the silence cannot "add() in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not" (Raffel v. United States, 271 U.S. at 499). /15/ II. THE "PLAIN ERROR" DOCTRINE APPLIES TO CONSTITUTIONAL ERRORS After the Court remanded this case with instructions that it be reconsidered in light of United States v. Young, 470 U.S. 1 (1985), the court of appeals adhered to its earlier judgment. It distinguished Young in part on the ground that the summation in Young violated an ethical norm, while the summation in this case abridged a constitutional principle (Pet. App. 5a-6a). /16/ That distinction has no basis in the Young decision and is in conflict with this Court's application of the contemporaneous objection rule. 1. The Young case involved a challenge to a proscutor's rebuttal summation. Prior to the rebuttal, defense counsel had argued that not even the prosecution believed the defendant to be guilty, and that the only person who had behaved with integrity in the case was the defendant. In response, the prosecutor denied counsel's claim that no one sitting at the government table believed the defendant to be guilty. The prosecutor also offered his opinion that defendant's actions constituted a fraud and advised the jurors that, in his opinion, the jurors would not be doing their job if they acquitted the defendant. At no time did defense counsel object. 470 U.S. at 5-6. Because no objections had been made, the Court held that the rebuttal argument must be reviewed under the "plain error" doctrine embodied in Fed. R. Crim. P 52(b). That rule, the Court observed, "authorizes the Courts of Appeals to correct only 'Particularly egregious errors'" (470 U.S. at 15, quoting United States v. Frady, 456 U.S. 152, 163 (1982)) -- in particular, "those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings," (ibid., quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). Nowhere in Young did this Court intimate that the plain error rule applies differently when constitutional rights are implicated. Indeed, the Court made clear that "(a) per se approach to plain-error review is flawed" (470 U.S. at 17 n.14) and that, instead, "'each case necessarily turns on its own facts'" (id. at 16,quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240 (1940)). How an error is labeled-constitutional or otherwise -- is beside the point. Rather, to trigger appellate review under Rule 52(b), the Court held, an error "must be more than obvious(,) * * * affect() 'substantial rights,' * * * (and) ha(ve) an unfair prejudicial impact on the jury's deliberations" (470 U.S. at 17 n.14). 2. Nothing in the language of Fed. R. Crim. P. 52(b) justifies distinguishing between constitutional and non-constitutional errors. Rule 52(b) permits a reviewing court to notice "(p)lain error or defects affecting substantial rights" even though no objection has been made at trial. Depending on the nature of the right and the particular factual setting, constitutional errors may be substantial or insubstantial, just as non-constitutional errors may be. The legislative history of Rule 52(b) suggests that the draftsmen of the Rule intended it to ensure fundamental fairness in the trial process, regardless of whether the error in question was constitutional in origin. This Court noted in Young that "(a) review of the drafting that led to the Rule shows that the Committee sought to enable the Courts of Appeals to review prejudicial errors 'so that any miscarriage of justice may be thwarted.'" 470 U.S. at 15 n.12 (quoting Advisory Committee on Rules of Criminal Procedure to the Supreme Court of the United States, Federal Rules of Criminal Procedure, Preliminary Draft 263 (1943)). There is no evidence that the draftsmen believed that constitutional errors were categorically more likely to promote a "miscarriage of justice." Indeed, the Advisory Committee Note accompanying Rule 52(b) (18 U.S.C. App. at 657) states that the Rule "is a restatement of existing law" as set forth by the Court in Wiborg v. United States, 163 U.S. 632 (1896). Accord Young, 470 U.S. at 15 n.12. In Wiborg, the Court reversed a conviction for lack of evidence. The Court held that in the absence of sufficient evidence, counsel's failure to request a verdict for the defendant was "a matter so absolutely vital to defendants" (163 U.S. at 658) as to constitute plain error. The importance of the error -- and not its constitutional or non-constitutional label -- was the decisive factor. 3. The distinction drawn by the court of appeals also mistakes the nature of the plain error rule, which stands as a narrow exception to the more basic principle that to preserve an issue -- constitutional or otherwise -- a contemporaneous objection must be lodged. The contemporaneous objection rule serves several obvious and important purposes. First and foremost, an objection informs the trial judge -- and assures a reviewing court -- that the objecting party actually disapproves of some aspect of the proceeding and does not accept or acquiesce in its legality. Unless a party registers an objection, he must be understood to approve what has happened at trial and presumptively to forsake any claim of injury. This Court made the point, in a setting similar to the present case, in Johnson v. United States, 318 U.S. 189 (1943). In Johnson, the defendant was permitted by the trial judge to refuse on self-incrimination grounds to answer certain questions put to him by the prosecutor during cross-examination. The prosecutor thereafter argued to the jury that the defendant's assertion of his Fifth Amendment privilege should be treated as evidence that the balance of his testimony was false. Foreshadowing its decision in Griffin, this Court observed (318 U.S. at 196) that because the trial court had permitted the defendant to claim a privilege against testifying, "the requirements of fair trial may preclude any comment." /17/ Nevertheless, the Court held (id. at 199-201) that the defendant had waived that claim by failing to register an objection at trial. The Court observced (id. at 199-200) that although counsel had initially objected to the prosecutor's remarks, he later withdrew that objection and instead made an objection "of a wholly different character" (id. at 200). Counsel's decision thus amounted to "silent approval of the course followed by the court * * * accompained by an express waiver of a prior objection" (ibid.). To entertain a claim on appeal, the Court concluded (id. at 201), "would not comport with the standards for the administration of criminal justice" in that it would permit the defendant "to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be reopened to him." In addition to simply registering a party's disapproval, timely objection affords both the trial court and the prosecutor the opportunity to consider, and perhaps rectify, their decisions and trial tactics while it is still possible to do so. Henry v. Mississippi, 379 U.S. 443, 448 (1965); United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907 (1966). Moreover, if a defendant prevails on his objections, he may avert perjudicial error and thus enhance his chances to secure an acquittal from the jury. And if he nonetheless is convicted, his timely objections will have defined the points to be reviewed on appeal and will have obviated the need to reverse a conviction simply because an error that was susceptible of correction was not preceived at trial. /18/ Any distinction between constitutional and non-constitutional error would disserve these purposes of the contemporaneous objection rule. Simply because evidence or argument is challenged on constitutional grounds should not relieve counsel of the duty to bring that objection to the immediate attention of the trial court. There is nothing about the label constitutional" that reduces the importance of "direct(ing) the mind of the trial court to the precise point to afford opportunity for reconsideration" (United States v. La Franca, 282 U.S. 568, 570 (1931)). Nor does the fact that an objection can be characterized in constitutional terms diminish the value of framing that issue clearly, both for resolution at the trial level and, if need be, for appellate review. The present case demonstrates persuasively why the contemporaneous objection rule must be applied with equal rigor to constitutional and non-constitutional errors. In his brief in opposition to certiorari in this case, respondent contended that the trial judge and the prosecutor misinterpreted his summation. See Br. in Opp. 1-9. According to respondent, counsel did not accuse the government of denying respondent a chance to explain himself at trial; rather, according to respondent (id. at 4), counsel simply claimed that respondent had not been given a chance to refute the fraud charges during the preindictment investigation. Respondent therefore assailed the prosecutor's rebuttal as "utterly gratuitous" and "inherently unresponsive to the context" of the defense summation (id. at 6-7). But respondent's failure to make this objection at the time of trial obviously left the trial judge and the prosecutor in the dark. Both the trial court and the prosecutor understood the defense summation as an assertion that respondent had been denied a chance to tell his story, both prior to trial and at the trail itself. /19/ The prosecutor expressed that view when he requested permission, during the bench conference following the defense summation, to respond to defense counsel's argument. Yet defense counsel did not object to the prosecutor's proposed rebuttal, nor did he suggest that the prosecutor had misunderstood his argument on that point. If defense counsel had intended to convey a different message during his argument, he had a duty to make that message clear at the time the prosecutor requested the court's permission to respond as he did and the court granted that permission. /20/ Defense counsel had a second opportunity to object to the prosecutor's rebuttal, at the time the prosecutor actually made his rebuttal argument to the jury. Even at that point, if defense counsel had objected and the court had agreed that the argument was improper, the court could have given a strong curative instruction that in all likelihood would have eliminated any risk of prejudice stemming from the prosecutor's comment. Again, however, defense counsel made no objection, thus denying the court the opportunity to cure on the spot what respondent later insisted was grave constitutional error. 4. The court of appeals' distinction between constitutional and non-constitutional errors also cannot be squared with this Court's application of the contemporaneous objection rule and the plain error exception to that rule. The Court has applied the plain error rule chiefly in order to review errors that threatened the reliability of a verdict or a sentence -- regardless of whether a constitutional right was at stake. In some of its early cases the Court applied the plain error doctrine to ensure that defendants were not convicted on insufficient evidence. See e.g., Clyatt v. United States, 197 U.S. 207 (1905); Wilborg v. United States, 163 U.S. 632 (1896). See also Vachon v. New Hampshire, 414 U.S. 478 (1974) (per curiam). The Court has also found plain error in other settings involving non-constitutional claims. Thus, the Court has found plain error where a verdict or sentence was suspect because of a prejudicial summation (N.Y. Central R.R. v. Johnson, 279 U.S. 310 (1929)), where the trial judge made improper remarks to the jury (Rogers v. United States, 422 U.S. 35 (1975); Brasfield v. United States, 272 U.S. 448 (1926)), where the court failed to charge an element of the offense (Screws v. United States, 325 U.S. 91 (1945) (plurality opinion)), where a biased juror participated in the deliberations (Crawford v. United States, 212 U.S. 183 (1909)), and where the court increased the sentence in the defendant's absence (Bartone v. United States, 375 U.S. 52 (1963)). In none of these cases did the Court suggest that the constitutional or non-constitutional nature of the error was relevant to its plain error analysis. /21/ By contrast, the Court has stated that "(n)o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before the tribunal having jurisdiction to determine it" (Yakus v. United States, 321 U.S. 414, 444 (1944)). Accord Jennings v. Illinois, 342 U.S. 104, 108-109 (1951). Thus, the Court has not hesitated to apply the contemporaneous objection rule, despite the fact that a constitutional claim was thereby foreclosed. See, e.g., Levine v. United States, 362 U.S. 610, 619 (1960) ("(t)he continuing exclusion of the public in this case is not to be deemed contrary to the requirements of the Due Process Clause without a request having been made to the trial judge to open the courtroom at the final stage of the proceeding, thereby giving notice of the claim now made and affording the judge an opportunity to avoid reliance on it"); Segurola v. United States, 275 U.S. 106, 111-112 (1927) (Fourth Amendment challenge to the seizure of evidence waived in the absence of a timely motion to suppress). See also Kimmelman v. Morrison, No. 84-1661 (June 26, 1986), slip op. 15-16 n. 7; On Lee v. United States, 343 U.S. 747, 749 n.3 (1952). The court of appeals freed itself from the rigors of the plain error rule in this case because it believed that a constitutional right was at stake. Even if that premise were valid -- and we submit that it is not -- the court misapplied the plain error doctrine to reverse respondent's conviction on an issue that obviously did not trouble respondent at trial. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solictor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General LAWRENCE S. ROBBINS Assistant to the Solicitor General APRIL 1987 /1/ Respondent was tried together with his wife, Aleida L. Robinson. She was convicted on one mail fraud count and was sentenced to two years' probation. The court of appeals affirmed her conviction (Pet. App. 15a-27a). Both respondent and Mrs. Robinson were acquitted on two counts of making false statements to a bank for purposes of obtaining a loan, in violation of 18 U.S.C. 1014. At the close of the evidence at trial, the district court dismissed two other counts charging respondent with making and possessing a destructive device, in violation of 26 U.S.C. 5861. /2/ As of September 1979, respondent's gasoline supplier held a total of $28,000 in bad checks from respondent. Tr. 495, 499. /3/ According to a local police officer who had previously worked for him, respondent abruptly removed his race car and personal tools from the garage two or three weeks before the fire. Tr. 361-363; Pet. App. 11a. /4/ Three days before the fire, respondent filed a change of address with the post office. Tr. 277-278. /5/ On August 16, 1980, five days before the fire, respondent rented a 24-foot U-Haul truck -- U-Haul's largest truck, which is designed to hold eight rooms of furniture. Tr. 163-164. /6/ Tools that repondent had removed from the truck stop garage proir to the fire there were also discovered in respondent's California resident. Tr. 368-372. /7/ Defense counsel made other comments in a similar vein: By the way, all those statements, I don't know how many statements were heard of Mr. Robinson, they were all about the arson. Did they ever give him a chance to explain about these sorts of things, about mail fraud? (Tr. 670; J.A. 18). * * * * * * * Did they ever give this man an opportunity in their many, many statements they took at the time to say "well, I had two bedroom sets" (Tr. 670; J.A. 18). * * * * * * * When he came to Tennessee in October, or shortly after the fire, within a month or so, they interviewed him about the arson. * * * They never gave him a chance to explain (Tr. 670-671; J.A. 19). * * * * * * * Now, here is what the Government, to be fair with the jury, should have done. They should have taken those items in the Kentucky inventory and just disprove them. Why let the defendant disprove them, give him an opportunity to expalin? (Tr. 674; J.A. 21). /8/ Defense counsel also argued that the jury could not draw any adverse inference from respondent's failure to take the stand. Tr. 678-679; J.A. 23-24. /9/ The prosecution also sought permission to inform the jury that the government, contrary to defense assertions, had attempted to bring in evidence of other false claims. Tr. 682; J.A. 25-26. Defense counsel objected to that request, and it was denied. Tr. 682-683; J.A. 26. /10/ The court of appeals affirmed Mrs. Robinson's conviction on the ground that the prosecutor referred only to respondent's failure to testify and thus did not taint the fairness of Mrs. Robinson's conviction (Pet. App. 25a-27a). /11/ "The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts." United States v. Nixon, 418 U.S. 683, 709 (1974). /12/ The Court reaffirmed the Raffel decision in Jenkins v. Anderson, 447 U.S. 231 (1980). In Jenkins the Court held that a defendant may be impeached at trial with his failure to tell his exculpatory story prior to his arrest. Earlier, in Grunewald v. United States, 366 U.S. 1 (1961); and United States v. Hale, 422 U.S. 171 (1975), the Court's distinguished Raffel on the ground that the defendant's prior silence in the context of those cases were not in any way indicative of his lack of credibility as a witness. /13/ See, e.g., Harris v. New York, 401 U.S. 222 (1971) (government may impeach a testifying defendant with confessions taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966)); Jenkins v. Anderson, 447 U.S. 231 (1980) (government may impeach a testifying defendant with his failure to tell his exculpatory story prior to his arrest); Doyle v. Ohio, 426 U.S. 610, 619-620 n.11 (1976) (government may impeach a defendant with his failure to tell his exculpatory story after receiving Miranda warnings if defendant testifies that he did tell that story to the police after his arrest); Walder v. United States, 347 U.S. 62 (1954) (illegally seized evidence may be used as impeachment material); Tennessee v. Street, 471 U.S. 409 (1985) (government may offer into evidence a co-defendant's confession, otherwise inadmissible under Bruton v. United States, 391 U.S. 123 (1968), to correct a potentially misleading impression created by the defendant's testimony). See generally Doyle v. Ohio, 426 U.S. at 628-629 & n.8 (Stevens, J., dissenting). /14/ Accord, e.g., Corbitt v. New Jersey, 439 U.S. 212 (1978) (upholding rule mandating life term on conviction by jury while permitting life term or less on conviction by plea, despite claim that this burdens right to trial by jury); McGautha v. California, 402 U.S. 183 (1971) (upholding rule combining trial and sentencing proceedings, despite claim that this compels a defendant to testify in order to influence the sentence that he receives); Williams v. Florida, 399 U.S. 78 (1970) (upholding statute that required a defendant to provide the prosecution with the names of alibi witnesses before trial or lose the right to present an alibi defense; rejecting claim that the statute unfairly burdens the privilege against compulsory self-incrimination). /15/ The Court's decisions in United States v. Hale, 422 U.S. 171 (1975), and Doyle v. Ohio, 426 U.S. 610 (1976), do not support the court of appeals' ruling in this case. In those cases the Court held that prosecutors may not cross-examine defendants about their silence following arrest and the receipt of Miranda warnings. The Court determined that persons who "had just been given the Miranda warnings" would be "particularly aware of (their) right to remain silent" (Hale, 422 U.S. at 177). See also id. at 182-183 (White, J., concurring in the judgment); Doyle, 426 U.S. at 617-619. "Under these circumstances," the Court concluded, the "failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication" (Hale, 422 U.S. at 177). The Court therefore characterized as "insolubly ambiguous" a defendant's silence following the receipt of Miranda warnings (Doyle, 426 U.S. at 617), and noted that because the warnings implicitly assure the defendant "that silence will carry no penalty, * * * it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial" (id. at 618 (footnote omitted)). Thus, as the Court has since confirmed, Hale and Doyle turned on the fact that "the government had induced silence by implicitly assuring the defendant that his silence would not be used against him." Fletcher v. Weir, 455 U.S. 603, 606 (1982) (per curiam). Hale and Doyle do not suggest that the same rule would apply if the defendant were told that his silence at the time of arrest could be used against him at trial. Those cases therefore cannot be read as exceptions to the basic proposition that rules of criminal procedure are not unconstitutional simply because they impose some burden on the exercise of a defendant's constitutional rights. /16/ The court of appeals also distinguished Young on the ground that in that case the prosecutor had invoked his own credibility whereas here the prosecutor had somehow impugned the respondent's credibility (Pet. App. 8a). There is no basis for his distinction. Nothing in the prosecutor's summation in this case adverted, even obliquely, to respondent's credibility. The court of appeals also held (ibid.) that the evidence in this case was not as overwhelming as in Young, a conclusion that the court derived from the jury's failure to convict respondent on all charges. Apart from its failure to acknowledge the extraordinary strength of the government's evidence, the court of appeals plainly misread the Young case. In Young, as in this case, the jury acquitted the defendant of one of the charges, a fact that this Court regarded as "reinforc(ing) our conclusion that the prosecutor's remarks did not undermine the jury's ability to view the evidence independently and fairly." 470 U.S. at 18 n.15. Other circuit courts have made the same point. See, e.g., United States v. Torres, 809 F.2d 429, 442-443 (7th Cir. 1987); United States v. Mandelbaum, 803 F.2d 42, 46 (1st Cir. 1986); United States v. Carson, 702 F.2d 351, 368 (2d Cir.), cert. denied, 462 U.S. 1108 (1983); United states v. Matalon, 445, F.2d 1215, 1219 (2d Cir.), cert. denied, 404 U.S 853 (1971). /17/ In support of this proposition the Court cited (318 U.S. at 196) the decision in Wilson v. United States, 149 U.S. 60 (1893), a case on which the Court would later rely in reaching its decision in Griffin (380 U.S. at 612). /18/ As the Court has observed, "(a) contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest (and) * * * (i)t enables the judge who observed the demeanor of the witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. * * * A contemporaneous-objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation." Wainwright v. Sykes, 433 U.S. 72, 88 (1977). /19/ That interpretation of defense counsel's argument was certainly a reasonable one, in light of defense counsel's argument to the jury that respondent had been denied the opportunity to "explain before you, members of your own community, rather than before the agents" (Tr. 671; U.A. 19). /20/ As in the Johnson case, counsel's failure to object cannot be dismissed as mere "inadvertence of oversight" (Johnson, 318 U.S. at 200). At the close of defense counsel's summation, the prosecutor moved to make two distinct arguments in rebuttal: first that the government had not kept respondent from testifying; and second, that the government had attempted at trial to offer certain evidence whose absence from the case defense counsel has assailed in his summation. Defense counsel objected only to the second proposed argument, and the trial judge sustained the objection. Conspicuously, counsel made no objection to the prosecutor's request that he be allowed to rebut the contention that the government had kept respondent from telling his side of the story. Counsel's failure to object can only be understood as a "recognition that the action of the trial judge was unexceptionable" (id. at 203 (Frankfurter, J., concurring)). See also Benson v. United States, 146 U.S. 325, 331-333 (1892). /21/ Although there is language in Weems v. United States, 217 U.S. 349 (1910), suggesting that plain error may more readily be notice for constitutional claims (217 U.S. at 362), that case cannot be read to justify a categorically different treatment for constitutional errors. The defendant in Weems, having been convicted in the Philippines of making false entries in a ledger, was sentenced to 15 years of hard labor, to be served while shackled from wrist to ankle, and therafter to a lifetime under government surveillance and without the right to marry, to be a parent, or to own property. Finding (id. at 366) that "(n)o circumstance of degradation (was) omitted" from this punishment, this Court held that the defendant could raise a claim of cruel and unusual punishment without having made such an objection below. Obviously, the sentence imposed in Weems "seriously affect(ed) the fairness, integrity or public reputation of judicial proceedings" (United States v. Atkinson, 297 U.S. at 160); thus, Weems should not be read as authority to depart from that rigorous "plain error" standard in constitutional case. Moreover, the Weems case involved a sentencing decision, not an evidentiary ruling; in that setting, the policies mandating contemporaneous objection are less compelling.