THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 18 - CHAPTER 309
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Macro 309.1    Rights Personal to Defendant

    Macro 1.1   Privilege Against Self Incrimination: Reliance On Silence
    Macro 1.2   Privilege Against Self Incrimination: Reliance On Inculpatory Evidence Obtained In Violation Of Privilege
    Macro 1.3   Defendant’s Right To Be Personally Present At Trial
    Macro 1.4   Right To Testify
    Macro 1.5   Double Jeopardy

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

VOLUME 18 - CHAPTER 309

     309.1.1    Privilege Against Self Incrimination: Reliance On Silence

    This instruction protects the defendant's federal constitutional rights under the 5th Amendment which provide that no person "shall be compelled in any criminal case to be a witness against himself." This prohibition is applicable to both the federal government and the states through the 14th Amendment. (See Malloy v. Hogan (1964) 378 US 1 [84 SCt 1489; 12 LEd2d 653].) This provision, as well as the due process clause of the federal constitution (5th and 14th Amendments), are implicated if the jury instructions permit or encourage the jury to rely on the defendant’s silence. (Griffin v. California (1965) 380 US 609, 614-15 [85 SCt 1229; 14 LEd2d 106]; Doyle v. Ohio (1976) 426 US 610 [96 SCt 2240; 49 LEd2d 91].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

VOLUME 18 - CHAPTER 309

    This instruction protects the defendant's federal constitutional rights under the 5th Amendment which precludes jury consideration of evidence which was obtained in violation of the defendant’s privilege against self-incrimination. (See e.g., New Jersey v. Portash (1979) 440 US 450, 459-60 [99 SCt 1292; 59 LEd 501]; Adams v. Maryland (1954) 347 US 179, 181 [74 SCt 442; 98 LEd 608]; U.S. v. Olvera (9th Cir. 1994) 30 F3d 1195; Brown v. State (GA 1993) 426 SE2d 559, 562-63 [requiring a defendant to give a handwriting exemplar violated the defendant’s privilege against self-incrimination].) "Compelled testimony that communicates information that may 'lead to incriminating evidence' is privileged even if the information itself is not inculpatory. [Citation.] It is the Fifth Amendment's protection against the prosecutor’s use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case." ( U.S. v. Hubbell (2000) 530 US 27 [120 SCt 2037, 2044; 147 LEd2d 24].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    This instruction is required by federal constitutional rights to a fair trial by jury, due process, confrontation, right to counsel, and compulsory process (5th, 6th and 14th Amendments) which require that the defendant be personally present at all stages of the proceedings where such presence is necessary. (Diaz v. U.S. (1912) 223 US 442, 455 [32 SCt 250; 56 LEd 500]; see also U.S. v. U.S. Gypsum Co. (1978) 438 US 422, 459-462 [98 SCt 2864; 57 LEd2d 854]; Rogers v. U.S. (1975) 422 US 35, 38-39 [95 SCt 2091; 45 LEd2d 1]; Shields v. U.S. (1927) 273 US 583, 588-89 [47 SCt 478; 71 LEd 787]; Bustamante v. Eyman (9th Cir. 1972) 456 F2d 269, 271-72.)

    These rights are implicated by procedures, instructions and/or the absence of instructions which allow the defendant to be prejudiced as a result of his or her absence from trial.

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

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

VOLUME 18 - CHAPTER 309

    This instruction is required by the federal constitutional rights to a fair trial by jury, due process, compulsory process and confrontation (5th, 6th and 14th Amendments) require that the defendant be permitted to testify in his or her own defense. (See Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Taylor v. Illinois (1988) 484 US 400, 408-409 [108 SCt 646; 98 LEd2d 798] [Compulsory Process and jury trial]; Nix v. Whiteside (1986) 475 US 157, 164 [106 SCt 988; 89 LEd2d 123] [due process Fifth/Fourteenth Amendments and corollary to privilege against self-incrimination].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    This instruction is required by the federal constitutional proscription against double jeopardy (5th and 14th Amendments). (See U.S. v. Dixon (1993) 509 US 688 [113 SCt 2849; 125 LEd2d 556].) The United States Supreme Court has held that the right not to be twice placed in jeopardy is "fundamental." (Benton v. Maryland (1969) 395 US 784, 794-96 [89 SCt 2056; 23 LEd2d 707].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.