In the case of Harris v. Washington, 1971, the U.S Supreme Court ruled that a defendant's Fifth Amendment right against self-incrimination was violated when his refusal to testify in a previous trial was used against him in a subsequent trial for another crime. The court held that this action by the prosecution constituted an impermissible penalty imposed on Harris' silence and thus infringed upon his constitutional rights. This decision extended the ruling from Griffin v. California (1965), which prohibited comments by prosecutors or judges about defendants’ failure to testify at their own trials, to cover instances where such silence is used as evidence of guilt in separate proceedings.

In the dissenting opinion for Harris v. Washington, Justice Harlan argued that the majority's decision to overturn a state court ruling on double jeopardy grounds was incorrect. He contended that the Court had misapplied its own precedent from Ashe v. Swenson and failed to give due deference to state courts' interpretations of their own laws and procedures. In his view, there was no constitutional violation in this case because each charge required proof of an additional fact not necessary for conviction on the other charges - thus they were separate offenses under Blockburger test standards. Furthermore, he criticized the majority's reliance on "implicit acquittal" theory as it could lead to confusion and inconsistency in future cases by forcing judges into speculative inquiries about what facts a previous jury must have decided.