Failure to Testify

From McClung’s Texas Pattern Jury Charges:

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence.

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant’s election not to testify — the exercise of one of the rights that we, as defenders, hold sacred — as a “failure”?


0 responses to “Failure to Testify”

  1. So do you object to that instruction and request wording that suggests a defendant’s “refusal” or “invocation of his right”??

    Honestly, it has never crossed my mind, so I’m curious.

  2. McClung’s has an alternative, using “election not to testify”, which I think is less poisonous language.

    Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.

  3. Here in Tennessee, our pattern says: “The Defendant has not taken the stand to testify as a witness but ou shall place no significance on this fact. The defendant is presumed innocent and the burden is on the state to prove [his or her]guilt beyond a reasonable doubt. [The defendant] is not required to take the stand in [his or her] own behalf and [his or her] election not to do so cannot be considered for anypurpose against [him or her], nor can any inference be drawn from such fact.” T.P.I. Crim. 43.03
    Our previous instruction used the “failure to testify” language. I began objecting to that language several years ago and the local judges began changing the language in the old pattern instruction to the “election not to testify” language and it eventually worked its way into the new pattern instruction.

  4. I hadn’t noticed this before I read your post, but Nebraska’s instruction (which is in bold caps and is read to the jury) is titled “Def’s FAILURE to testify” as well.

    There is also no mention of the source of the privilege, but the comment says “the committee left mention of the Constitution to argument of counsel.”

    In other words, it looks like we need to start arguing both for a mention of this as being a “Constitutional” right and objecting to it being called a “failure.”

    My former boss is arguing a death penalty case right now and I’m sure defendant won’t testify, meaning that the jury will hear about his “failure.” I’m going to blog about this and pass it along, as it’s probably not too late to change it.

    Thanks for spotting this.

  5. I generally don’t have the instruction given at all. The jury has heard in voir dire already that they can’t hold it against defendants who “don’t testify”, and i don’t like highlighting the issue so i generally advise clients not to have the instruction given. (I practice in Pennsylvania).

  6. Thanks, Randall and David, for your comments.

    Marissa, my guess is that juries naturally want to hold people’s silence against them, so it’s better to tell them more often not to do so, but the idea that it might be better not to is a provocative one.

  7. I’m with Marissa on this (for the most part). Since there’s no good way to explain the “failure”, I really don’t want it highlighted. It’s always there either way, but why remind them of it when I’m busy trying to remind them of things that are good for me rather than bad for me.

    But this isn’t an absolute rule. There are always variations that compel a change in position.

  8. Mark – You’re right that juries want to hold it against a defendant who doesn’t testify. My experience has been that this is a pretty deeply-held belief (particularly in child sex cases, which is a large part of my trials) that a jury instruction does nothing to alleviate. Hence the no instruction practice.

  9. (Sorry, but i should have added that Pennsylvania’s standard instruction reads as follows:
    It is entirely up to the defendant in every criminal trial whether or not to testify. [He] [She] has an absolute right founded on the Constitution to remain silent. You must not draw any inference of guilt, or any other inference adverse to the defendant, from the fact that [he] [she] did not testify.)

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