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18.3 Failure Of Defendant To Testify

    18.3.1 Defendant's Failure To Testify Is Not A "Strategic Maneuver"
    18.3.2 Failure To Testify Instruction Must Preclude Any "Unfavorable Inference"
    18.3.3 Whether Instructions Against Drawing Inference From Failure To Testify Should Be Given When Defendants Disagree
    18.3.4 Waiver Of Instruction Regarding The Defendant's Failure To Testify To Avoid Prejudicially Highlighting The Matter
    18.3.5 Defendant Has Right To Instruction On Privilege Against Self Incrimination Even If Defendant Is Not Present During Trial
    18.3.6 Defendant Who Fails To Testify Need Not Disprove Anything
    18.3.7 Reference To Defendant's Testimonial Rights During Voir Dire As Prejudicial Error
    18.3.8 Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes

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RATIONALE: When the defendant fails to testify there will be a tendency for the jury to conclude that this was a strategic maneuver. Such an assumption may be reinforced by a lengthy instruction on the defendant's privilege not to testify. Hence, counsel may wish to consider a shortened version of the instruction.

POINTS AND AUTHORITIES: Care should be taken to avoid giving the jury the impression that the defendant’s decision not to testify was a strategic maneuver. (See e.g., People v. Lara (NY 1989) 538 NYS2d 553, 554; People v. Soto (NY 1989) 536 NYS2d 855, 856; People v. Colon (NY 1988) 531 NYS2d 355,356.)

    The suggestion of a defense strategy might be less apparent if the instruction is extremely brief and unembellished.

    Furthermore, when the jury is informed about the defendant's right not to testify it must be clear that this instruction, as well as all other instructions, is coming from the judge rather than at the request of the defense. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 6:08 [Witnesses-Not Testifying Or Presenting Evidence--Another Form] (West, 1999); see also People v. Knowell (NY 1983) 464 NYS2d 525, 529; see also FORECITE National™ 2.2.3 [Error To Reveal The Requesting Party].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 1.1].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1n. 5th Amendment Privilege Against Self Incrimination: Comment In Argument After Assertion Of Privilege].

See also Manual On Recurring Problems In Criminal Trials [4a. Direct Reference To Defendant's Failure To Testify: General Principles].

See generally FORECITE National™ 18.3.8 [Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    Do not draw an inference unfavorable to the defendant from the fact that [he] [she] did not testify.

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RATIONALE: An instruction regarding the defendant's failure to testify should preclude the drawing of "any unfavorable inference." Use of language such as "unreasonable inference" is impermissible. Use of language such as "no adverse inference as to guilt" may be insufficient to preclude any unfavorable inference.

POINTS AND AUTHORITIES: See Griffin v. California (1965) 380 US 609 [85 SCt 1229; 14 LEd2d 106]; see also State v. Vega (CT 1994) 646 A2d 957, 960; State v. Yurch (CT 1994) 641 A2d 1387, 1391-92.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 1.1].

See Manual On Recurring Problems In Criminal Trials [1n. 5th Amendment Privilege Against Self Incrimination: Comment In Argument After Assertion Of Privilege].

See also Manual On Recurring Problems In Criminal Trials [4a. Direct Reference To Defendant's Failure To Testify: General Principles].

See generally FORECITE National™ 18.3.8 [Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes].

    The defendant has an absolute right under the Constitution to not testify.  Do not draw any inference adverse to the defendant, from the fact that [he] [she] did not testify.

    The fact that the defendant did not testify in this case is not a factor from which you may draw any inference unfavorable to the defendant.

    The defendant may testify in his own behalf if he elects to do so.  However, if (he/she) chooses not to do so, you must not consider that choice in any way.  You must not discuss the defendant's failure to testify in your deliberations or take it into consideration for any purpose whatsoever.

    Do not consider the fact that the defendant has not testified to infer guilt or prejudice against the defendant in any way.

    (1) A defendant has an absolute right not to testify [or present evidence]. The fact that he did not testify [or present any evidence] cannot be considered by you in any way. Do not even discuss it in your deliberations.

    (2) Remember that it is up to the government to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that he is innocent.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.02A [Defendant's Failure to Testify] (1991).]

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PRACTICE NOTE: In single defendant cases, an instruction cautioning the jury not to draw an adverse inference from the defendant's failure to testify is required upon request. (See Carter v. Kentucky (1981) 450 US 288, 305 [101 SCt 1112; 67 LEd2d 241]; Lakeside v. Oregon (1978) 435 US 333, 340-41 [98 SCt 1091; 55 LEd2d 319]; 75 AM JUR 2d trial, §§ 577-79.)  However, in multi defendant cases where the codefendants disagree about whether a Carter/Lakeside instruction should be given, there is an inherent conflict which the trial judge must resolve. Several cases have held that the conflict should be resolved in favor of giving the instruction because Carter requires the instruction be given. (See e.g., Melgoza v. Peters (7th Cir. 1991) 932 F2d 676, 677 [finding no error in trial court's decision to give "no-inference" instruction upon codefendant's request and defendant's objection]; State v. Griffin (IA 1998) 576 NW2d 594 596; People v. Brooks (IL 1984) 463 NE2d 1326, 1331 [finding that, in case of codefendant's conflicting requests, there is "no constitutional infirmity so long as the trial court gives the tendered instruction"]; Lucas v. State (IN 1986) 499 NE2d 1090, 1093 [finding that a defendant's right to an instruction must prevail over the codefendant's state constitutional right to decide whether or not he wants the instruction]; Hardaway v. State (MD 1989) 562 A2d 1234, 1238 [determining that the constitutional right of a defendant requesting the instruction must take precedence over the wishes of a codefendant objecting to the instruction]; State v. McNeil, (NJ 1978) 395 A2d 549, 551 [it is preferable to give the charge as to all defendants]; U.S. v. Williams (DC Cir. 1975) 521 F2d 950 955 [court properly gave cautionary instruction as to one defendant over the objection of the codefendant]; see generally O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 15.14 [Effect Of The Defendant's Failure To Testify] (West, 5th ed. 2000).)

    However, this result undermines the fundamental rule that the defendant should not be required to accede to cautionary instructions which will highlight a prejudicial matter. (See generally Annotation, "Propriety under Griffin v. California and Prejudicial Effect of Unrequested Instruction That No Inferences Against Accused Should Be Drawn from His Failure to Testify," 18 ALR3d 1335.) In fact, many cases have recognized that a violation of this rule, in the context of a Carter instruction, is prejudicial error. Hence, forcing an unwanted Carter/Lakeside instruction upon a defendant implicates the right against self incrimination as well as the rights to due process, fair trial by jury and representation of counsel under the 5th, 6th and 14th Amendments to the federal constitution.

PRETRIAL MOTION NOTE: The very existence of such a conflict between codefendants would be a logical factor militating in favor of severance and separate trials or, at least, separate juries. (See People v. Jackson (CA 1996) 13 C4th 1164, 1208 [56 CR2d 49] [problem addressed in Bruton and Aranda may also be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence]; see also People v. Harris (CA 1989) 47 C3d 1047, 1070-1076 [255 CR 352].)

USE NOTE: The commentary to Federal Judicial Center Instruction 22 recommends that if there is more than one nontestifying defendant and an instruction is requested by some but not all such defendants, it should be given in general terms without the use of the defendants’ names. (See also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.02A [Defendant’s Failure To Testify], commentary (1991).)

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1n. 5th Amendment Privilege Against Self Incrimination: Comment In Argument After Assertion Of Privilege].

See also Manual On Recurring Problems In Criminal Trials [4a. Direct Reference To Defendant's Failure To Testify: General Principles].

See generally FORECITE National™ 18.3.8 [Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Some defendants object to this instruction because it "highlights to the jury [their] failure to testify." (State v. Baxter (HI 1969) 454 P2d 366, 367; see also HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 3.14 commentary [Defendant Not Required To Testify] (West, 1998).) The rationale for precluding a cautionary instruction in the absence of a request is that no matter how favorable the language of the instruction may be "it necessarily highlights and singles out the fact that the defendant failed to testify, thereby perhaps inadvertently inducing the jurors to consider certain adverse inferences which otherwise might never have occurred to them." [Footnote omitted.] ( Wharton’s Criminal Procedure (West, 13th ed. 1989) § 353, pp. 131-32; see also State v. Zaragosa (AZ 1967) 430 P2d 426, 428 [cautionary instruction without request constituted reversible error]; People v. Molano (CA 1967) 253 CA2d 841, 847 [61 CR 821] [instruction over defendant’s objection was tantamount to a comment on the defendant's failure to testify because it highlighted and emphasized the defendant’s failure to testify]; Manning v. State (IN 1984) 459 NE2d 1207, 1212-13 [failure to give instruction, if requested, or giving instruction over objection, is federal constitutional error requiring reversal unless proved harmless beyond a reasonable doubt by the prosecution]; but see Wharton’s Criminal Procedure (West, 13th ed. 1989) § 353, pp. 135-36 ["protective" instruction under Griffin is permissible even without request of the defendant or over the defendant's objection].)

    See also  FORECITE National™ 18.3.1 [Defendant's Failure To Testify Is Not A "Strategic Maneuver"].

RESEARCH NOTE:

Annotation, Propriety Under Griffin V. California And Prejudicial Effect Of Unrequested Instruction That No Inferences Against Accused Should Be Drawn From His Failure To Testify, 18 ALR3rd 1335.

See Manual On Recurring Problems In Criminal Trials [1n. 5th Amendment Privilege Against Self Incrimination: Comment In Argument After Assertion Of Privilege].

See also Manual On Recurring Problems In Criminal Trials [4a. Direct Reference To Defendant's Failure To Testify: General Principles].

See generally,  FORECITE National™ 18.3.8 [Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It is permissible to try the defendant in absentia if the defendant has voluntarily absented himself from the trial. (See, e.g., Vasquez v. State (TX 1984) 680 SW2d 626, 628-29.) However, defendant’s voluntary absence does not constitute a waiver of the right to caution the jury regarding the failure of the defendant to testify at trial in accordance with Carter v. Kentucky (1981) 450 US 288, 303 [101 SCt 1112; 67 LEd2d 241]. (See also People v. Morales (NY 1981) 441 NYS2d 686, 687.)

    Hence, even if the defendant has fled and been tried in his or her absence, the jury should still be instructed, upon request, that no adverse inference may be drawn from the defendant’s failure to testify. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:73 [Silence Of Defendant-Arrest] (West, 1999); see also People v. Morales (NY 1981) 441 NYS2d 686, 687.)

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [9h. Right Of Confrontation: Effect Of Defendant's Voluntary Absence From Trial].

See also Manual On Recurring Problems In Criminal Trials [5th Amendment Privilege Against Self Incrimination: General Principles].

See Manual On Recurring Problems In Criminal Trials [1n. 5th Amendment Privilege Against Self Incrimination: Comment In Argument After Assertion Of Privilege].

See also Manual On Recurring Problems In Criminal Trials [4a. Direct Reference To Defendant's Failure To Testify: General Principles].

See generally, FORECITE National™ 18.3.8 [Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes].

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    18.3.6    Defendant Who Fails To Testify Need Not Disprove Anything

    See  FORECITE National™ 18.4.1 [Defendant Not Required To Produce Any Evidence].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1n. 5th Amendment Privilege Against Self Incrimination: Comment In Argument After Assertion Of Privilege].

See also Manual On Recurring Problems In Criminal Trials [4a. Direct Reference To Defendant's Failure To Testify: General Principles].

See generally, FORECITE National™ 18.3.8 [Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 10.2.8 [Reference To Defendant’s Testimonial Rights During Voir Dire As Prejudicial Error].

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    18.3.8    Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.03.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.02A.

See also 7th Circuit Federal Jury Instructions - Criminal 2.03.

See also 8th Circuit Model Jury Instructions - Criminal 4.01.

See also 9th Circuit Model Jury Instructions - Criminal 3.3.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 2.2.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 22.