A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase

3.18     Defendant's Testimony
            A. Defendant's Right to Testify (Criminal)
            B. Defendant's Refusal to Answer Questions on Cross-Examination (Criminal)

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A.     Defendant's Testimony: Defendant's Right to Testify (Criminal)

Although a defendant's right to testify is well established, Rock v. Arkansas, 483 U.S. 44, 51 (1987), a defendant must assert the right to testify before the jury has reached a verdict. See United States v. Pino-Noriega, 189 F.3d 1089, 1095-96 (9th Cir.), cert. denied, 528 U.S. 989 (1999). If the defendant does not testify, use Instruction 3.3 of the NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS CRIMINAL (2003). If the defendant testifies, use Instruction 3.4 of the NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS CRIMINAL (2003).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.     Defendant's Testimony: Defendant's Refusal to Answer Questions on Cross-Examination (Criminal)

"When a defendant refuses to answer questions on crossexamination, the district court may impose one or more of the following sanctions: (1) permit the prosecution to comment on the defendant's unprivileged refusal to answer; (2) permit the prosecution to impeach the defendant's direct testimony by continuing to elicit his unprivileged refusal to answer; (3) instruct the jury that it may take the defendant's refusal to answer various questions into account when reaching a verdict; and/or (4) strike the defendant's direct testimony." United States v. King, 200 F.3d 1207, 1217 (9th Cir. 1999) (citation omitted).

"The Constitution does not give a defendant the right to testify without subjecting himself to cross-examination which might tend to incriminate him." Williams v. Borg, 139 F.3d 737, 740 (9th Cir.) (striking of state defendant's testimony following his refusal to answer questions regarding prior convictions was neither arbitrary nor disproportionate on facts presented), cert. denied, 525 U.S. 937 (1998).