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VOLUME 3 - CHAPTER 18
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18.4 Failure Of Defendant To Present Evidence

    18.4.1 Defendant Not Required To Produce Any Evidence
    18.4.2 Distinction Between Instruction Regarding The Defendant's Failure To Testify And The Failure To Present Evidence
    18.4.3 "Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses

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VOLUME 3 - CHAPTER 18

RATIONALE: The jury should understand that the defendant's failure to produce evidence cannot be considered as evidence in favor of the prosecution.

POINTS AND AUTHORITIES: Because the prosecution has the burden of proving every essential fact beyond a reasonable doubt, the defendant has no burden to produce any evidence at all. (In re Winship (1970) 397 US 358 [90 SCt 1068, 25 LEd2d 368]; U.S. v. Maccini (1st Cir. 1983) 721 F2d 840.)

    See FORECITE National™ 270.2.2 [Duty To Presume Defendant Innocent: Defendant's Attempt To Refute Prosecution Evidence Does Not Shift Burden].

    See also FORECITE National™ 12.2.1.1 [Charges And Burden Of Proof].

    See also FORECITE National™ 12.3.6 [Preliminary Instructions: The Defendant’s Right Not To Testify].

    See  also FORECITE National™ 251.4.2.7 [Defendant’s Good Character: Defendant Has No Burden Of Producing Evidence Or Calling Witnesses].

    See  also FORECITE National™ 270.2.15 [Presumption Of Innocence Alone Sufficient To Acquit].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [5a. Comment On Defendant’s Failure To Present Evidence: General Principles].

    Remember that a defendant has an absolute right not to testify (offer evidence). The fact that _______ did not testify (offer any evidence) should not be considered by you in any way or even discussed in your deliberations. I remind you 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 not guilty.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 22 [Defendant’s Election Not To Testify (Or Offer Evidence): Jury Not To Consider] (1988).]

    Because the prosecution has the burden of proof, the defendant is not obligated to produce any evidence whatsoever.  The decision whether or not to produce evidence is for the defendant to make with the advice of counsel.

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RATIONALE: Most pattern instructions include an instruction on the right of the defendant not to testify per Lakeside v. Oregon (1978) 435 US 333, 335 [98 SCt 1091; 55 LEd2d 319]. However, by focusing specifically on the defendant's right not to testify, such an instruction could cause the jury to overlook or misunderstand the more general rule that the defendant need not present evidence of any kind whatsoever. (See FORECITE National™ 12.3.2 [Preliminary Instructions: Defendant Need Not Present Evidence] and  FORECITE National™ 18.4 [Failure Of Defendant To Present Evidence].) Therefore, it may be appropriate to separately instruct the jury on the fact that the defendant need not present any evidence when instructing on the defendant’s right not to testify.

POINTS AND AUTHORITIES: See e.g., WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS 1.04 [Right Of Defendant Not to Testify]; 1.05 [Right Of Defendant Not To Testify]; (Wyoming State Bar, 1996) [instruction that defendant need not present evidence is set out separately because it is believed that the right not to testify is separate and distinct from the right not to present evidence, and the two should not be combined or confused]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.60 [Defendant Not Testifying–No Inference Of Guilt May Be Drawn]; 2.61 [Defendant May Rely On State Of Evidence]; (West, 6th Ed. 1996).)

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [5a. Comment On Defendant’s Failure To Present Evidence: General Principles].

    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.

    Because the prosecution has the burden of proof, the defendant is not obligated to produce any evidence whatsoever.  The decision whether or not to produce evidence is for the defendant to make with the advice of counsel.

    The [A] defendant has an absolute right not to testify. The fact that the [a] defendant did not testify should not be considered by you in any way in arriving at your verdict.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.01 [Failure Of Defendant To Testify] (1999).]

    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.

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    See FORECITE National™ 16.3.4 ["Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses].

See Manual On Recurring Problems In Criminal Trials [5a. Comment On Defendant’s Failure To Present Evidence: General Principles].