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This case is the poster child for why the US Supreme Court's ruling in Griffin v California (1965) is utter madness.

Under the Fifth Amendment, Casey Anthony cannot be compelled to take the stand and testify.

Fine. But the Supreme Court has gone far beyond that.

What the Supreme Court has said is that the jury is not allowed to consider the fact that the defendant has been unwilling to tell his or her side of the story to the jury and may draw no adverse inference from it. When the judge gives that instruction to the jury, it has the effect of perverting justice and confusing the jury, who has been solemnly told that their duty requires the jury to ignore what common sense tells them is quite important.

It defies common sense. Casey Anthony knows exactly what happened. She has the constitutional right not to talk to the jury. But the jury should be allowed to draw whatever reasonable inference they feel is proper from her failure to speak what she knows. She can refuse to speak, but the jury should be allowed to think about what that means for the evidence in the case.

Justice Scalia eviscerated the ridiculous Griffin rule in his dissent in Mitchell v United States: "Our hardy forebears, who thought of compulsion in terms of the rack and oaths forced by the power of law, would not have viewed the drawing of a commonsensical inference as equivalent pressure. More of what Scalia had to say on this:

The Fifth Amendment provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” As an original matter, it would seem to me that the threat of an adverse inference does not “compel” anyone to testify. It is one of the natural (and not governmentally imposed) consequences of failing to testify–as is the factfinder’s increased readiness to believe the incriminating testimony that the defendant chooses not to contradict. Both of these consequences are assuredly cons rather than pros in the “to testify or not to testify” calculus, but they do not compel anyone to take the stand. Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his own cross-examined testimony.
Despite the text, we held in Griffin v. California, 380 U.S. 609, 614 (1965), that it was impermissible for the prosecutor or judge to comment on a defendant’s refusal to testify. We called it a “penalty” imposed on the defendant’s exercise of the privilege. Ibid. And we did not stop there, holding in Carter v. Kentucky, 450 U.S. 288 (1981), that a judge must, if the defendant asks, instruct the jury that it may not sua sponte consider the defendant’s silence as evidence of his guilt.
The majority muses that the no-adverse-inference rule has found “wide acceptance in the legal culture” and has even become “an essential feature of our legal tradition.” Ante, at 14. Although the latter assertion strikes me as hyperbolic, the former may be true–which is adequate reason not to overrule these cases, a course I in no way propose. It is not adequate reason, however, to extend these cases into areas where they do not yet apply, since neither logic nor history can be marshaled in defense of them. The illogic of the Griffin line is plain, for it runs exactly counter to normal evidentiary inferences: If I ask my son whether he saw a movie I had forbidden him to watch, and he remains silent, the import of his silence is clear. Indeed, we have on other occasions recognized the significance of silence, saying that “ ‘[f]ailure to contest an assertion … is considered evidence of acquiescence … if it would have been natural under the circumstances to object to the assertion in question.’ ” Baxter v. Palmigiano, 425 U.S. 308, 319 (1976) (quoting United States v. Hale, 422 U.S. 171, 176 (1975)). See also United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153—154 (1923) (“Conduct which forms a basis for inference is evidence. Silence is often evidence of the most persuasive character”).
And as for history, Griffin’s pedigree is equally dubious. The question whether a factfinder may draw a logical inference from a criminal defendant’s failure to offer formal testimony would not have arisen in 1791, because common-law evidentiary rules prevented a criminal defendant from testifying in his own behalf even if he wanted to do so. See generally Ferguson v. Georgia, 365 U.S. 570 (1961). That is not to say, however, that a criminal defendant was not allowed to speak in his own behalf, and a tradition of expecting the defendant to do so, and of drawing an adverse inference when he did not, strongly suggests that Griffin is out of sync with the historical understanding of the Fifth Amendment. Traditionally, defendants were expected to speak rather extensively at both the pretrial and trial stages of a criminal proceeding. The longstanding common-law principle, nemo tenetur seipsum prodere, was thought to ban only testimony forced by compulsory oath or physical torture, not voluntary, unsworn testimony. See T. Barlow, The Justice of Peace: A Treatise Containing the Power and Duty of That Magistrate 189—190 (1745).
Pretrial procedure in colonial America was governed (as it had been for centuries in England) by the Marian Committal Statute, which provided:
“[S]uch Justices or Justice [of the peace] before whom any person shall be brought for Manslaughter or Felony, or for suspicion thereof, before he or they shall commit or send such Prisoner to Ward, shall take the examination of such Prisoner, and information of those that bring him, of the fact and circumstance thereof, and the same or as much thereof as shall be material to prove the Felony shall put in writing, within two days after the said examination… .” 2 & 3 Philip & Mary, ch. 10 (1555).
The justice of the peace testified at trial as to the content of the defendant’s statement; if the defendant refused to speak, this would also have been reported to the jury. Langbein, The Privilege and Common Law Criminal Procedure, in The Privilege Against Self-Incrimination 82, 92 (R. Helmholz et al. eds. 1997).
At trial, defendants were expected to speak directly to the jury. Sir James Stephen described 17th- and 18th-century English trials as follows:
“[T]he prisoner in cases of felony could not be defended by counsel, and had therefore to speak for himself. He was thus unable to say…that his mouth was closed. On the contrary his mouth was not only open, but the evidence given against him operated as so much indirect questioning, and if he omitted to answer the questions it suggested he was very likely to be convicted.” J. Stephen, 1 History of the Criminal Law of England 440 (1883).
See also J. Beattie, Crime and the Courts in England: 1660—1800, pp. 348—349 (1986) (“And the assumption was clear that if the case against him was false, the prisoner ought to say so and suggest why, and that if he did not speak that could only be because he was unable to deny the truth of the evidence”); 2 W. Hawkins, Pleas of the Crown, ch. 39, §2 (8th ed. 1824) (confirming that defendants were expected to speak in their own defense at trial). Though it is clear that adverse inference from silence was permitted, I have been unable to find any case adverting to that inference in upholding a conviction–which suggests that defendants rarely thought it in their interest to remain silent. See Langbein, supra, at 95—96.
No one, however, seemed to think this system inconsistent with the principle of nemo tenetur seipsum prodere. And there is no indication whatever that criminal procedure in America made an abrupt about-face when this principle was ratified as a fundamental right in the Fifth Amendment and its state-constitution analogues. See Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege Against Self Incrimination, supra, at 139—140. Justices of the peace continued pretrial questioning of suspects, whose silence continued to be introduced against them at trial. See, e.g., Fourth Report of the Commissioners on Practice and Pleadings in New York–Code of Criminal Procedure xxviii (1849); 1 Complete Works of Edward Livingston on Criminal Jurisprudence 356 (1873). If any objection was raised to the pretrial procedure, it was on the purely statutory ground that the Marian Committal Statute had no force in the new republic. See, e.g., W. Hening, The Virginia Justice: Comprising the Office and Authority of a Justice of the Peace 285 (4th ed. 1825). And defendants continued to speak at their trials until the assistance of counsel became more common, which occurred gradually throughout the 19th century. See W. Beaney, The Right to Counsel in American Courts 226 (1955).
The Griffin question did not arise until States began enacting statutes providing that criminal defendants were competent to testify under oath on their own behalf. Maine was first in 1864, and the rest of the States and Federal Government eventually followed. See 2 J. Wigmore, Evidence §579 (3d ed. 1940). Although some of these statutes (including the federal statute, 18 U.S.C. § 3481) contained a clause cautioning that no negative inference should be drawn from the defendant’s failure to testify, disagreement with this approach was sufficiently widespread that, as late as 1953, the Uniform Rules of Evidence drafted by the National Conference of Commissioners on Uniform State Laws provided that "[i]f an accused in a criminal action does not testify, counsel may comment upon [sic] accused’s failure to testify, and the trier of fact may draw all reasonable inferences therefrom." Uniform Rule of Evidence 23(4). See also Model Code of Evidence Rule 201(3) (1942) (similar).
Whatever the merits of prohibiting adverse inferences as a legislative policy, see ante, at 14-15, the text and history of the Fifth Amendment give no indication that there is a federal constitutional prohibition on the use of the defendant’s silence as demeanor evidence. Our hardy forebears, who thought of compulsion in terms of the rack and oaths forced by the power of law, would not have viewed the drawing of a commonsensical inference as equivalent pressure. And it is implausible that the Americans of 1791, who were subject to adverse inferences for failing to give unsworn testimony, would have viewed an adverse inference for failing to give sworn testimony as a violation of the Fifth Amendment. Nor can it reasonably be argued that the new statutes somehow created a “revised” understanding of the Fifth Amendment that was incorporated into the Due Process Clause of the Fourteenth Amendment, since only nine States (and not the Federal Government) had enacted competency statutes when the Fourteenth Amendment was adopted, and three of them did not prohibit adverse inferences from failure to testify.1
The Court’s decision in Griffin, however, did not even pretend to be rooted in a historical understanding of the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional command, quoting a passage from an earlier opinion describing the benevolent purposes of 18 U.S.C. § 3481 and then decreeing, with literally nothing to support it: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected.” 380 U.S., at 613—614. Imagine what a constitution we would have if this mode of exegesis were generally applied–if, for example, without any evidence to prove the point, the Court could simply say of all federal procedural statutes, “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Due Process Clause is reflected.” To my mind, Griffin was a wrong turn–which is not cause enough to overrule it, but is cause enough to resist its extension.