THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 17 - CHAPTER 303
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303.14 Failure Of Defendant To Testify

    303.14.1 No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

RATIONALE: Without a limiting instruction the jury may improperly draw an adverse inference against the defendant at the penalty trial from the defendant's failure to testify at the guilt and/or penalty phase.

POINTS AND AUTHORITIES: Mitchell v. U.S. (1999) 526 US 314 [119 SCt 1307; 143 LEd2d 424] held that the prosecution may not rely upon the defendant's "rightful silence" at the guilt phase of a trial in meeting its "burden of proving facts relevant to the crime at the sentencing phase...." (526 US at 330.) Accordingly, the 5th Amendment privilege against self incrimination should preclude the jury from drawing any adverse inference from the defendant's silence. (See Estelle v. Smith (1981) 451 US 454, 463 [101 SCt 1866; 68 LEd2d 359] ["Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing would clearly contravene the 5th Amendment"]; People v. Ramirez (IL 1983) 457 NE2d 31, 35-37; see generally Griffin v. California (1965) 380 US 609, 612-15 [85 SCt 1229; 14 LEd2d 106].) As the Supreme Court recognized in Estelle v. Smith, there is "no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial as far as the protection of the 5th Amendment privilege is concerned." (451 US at 462-63.)

    Hence, the jury should not be permitted to make any use of the defendant's failure to testify either at the guilt or the penalty phase in deciding whether the defendant should be sentenced to death. (See ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 7C.04A [Failure Of Defendant To Testify] (West, 4th ed. 2000) [instruction precluding consideration of defendant's failure to testify at penalty trial must be given unless defense counsel objects].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 1.1; Death Penalty Macro 13.10; 13.13].

NOTE: Mitchell expressly left unresolved the question of whether the 5th Amendment protection applied to the determination of lack of remorse or acceptance of responsibility for purposes of downward adjustment under the federal sentencing guidelines. However, in light of the applicability of the 5th Amendment to capital sentencing proceedings (Estelle, 451 US at 462-63), an inference of lack of remorse from the defendant's silence at a capital trial would violate the 5th Amendment.

See Capital Punishment Handbook [1.7 a. Requisite Mental State For Imposition Of Death Sentence: General Principles And Authorities].

[Source: NCJIC.]

       You must not, in any way, consider the fact that [a] [the] defendant did not testify.

[Cf. ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 2.04 [Failure Of Defendant To Testify] (West, 4th ed. 2000).]