In the case of Tehan, Sheriff v. United States ex rel. Shott (1965), the U.S. Supreme Court ruled that a prosecutor's comments on a defendant's failure to testify did not violate the Fifth Amendment right against self-incrimination because it was not considered "compelled" testimony. The court also held that its previous ruling in Griffin v. California, which prohibited such prosecutorial comments, would only apply prospectively and not retroactively to cases already decided before Griffin was handed down.

In the dissenting opinion for Tehan, Sheriff v. United States ex rel. Shott, Justice Black disagreed with the majority's decision to apply retroactively a new constitutional rule that forbade prosecutors from commenting on a defendant's failure to testify in his own defense. He argued that this was an unprecedented departure from established legal principles and warned of its potential implications for other areas of law where changes in interpretation could have significant retrospective effects. Furthermore, he contended that such retroactive application would place undue burdens on state courts by requiring them to retry countless cases under new rules not in existence at the time of original trials. In essence, Justice Black believed it was unfair and impractical to impose contemporary standards retrospectively onto past proceedings.